Want to know Supreme Court nominee Elena Kagan's thoughts about the legality of the White House's new health care law? How about her position on the constitutionality of gay marriage, or Arizona's new law on illegal immigration?
Too bad. If Kagan follows the playbook for nominees, she won't be speaking her mind about legal, political or social issues raised by the senators whose votes she needs for confirmation.
Unless she breaks the traditional silence of other recent Supreme Court nominees — something the nominee herself called for in 1995 — senators will have to vote on elevating Kagan to the nation's highest court without finding out where she really stands on today's hot-button topics.
Kagan was to start meeting with senators at the Capitol on Wednesday. Republicans are warning that a lack of candor could be detrimental to her getting bipartisan approval.
"Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general," Sen. John Cornyn, R-Texas, said. "This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions."
But ever since Robert Bork expansively explained his theories of the law to the Senate Judiciary Committee in 1987 and failed to get Senate confirmation, Supreme Court nominees have kept their personal opinions about controversial questions to themselves as much as possible.
Justice John Paul Stevens, the man Kagan wants to replace, says that is the way it is supposed to be.
"It's quite unfortunate to be trying to pin down judges on particular issues," Stevens said while speaking at a judicial conference last week. "What they've said in published opinions is one thing, but speculating about issues is another."
Stevens was nominated less than three years after the landmark Roe v. Wade abortion decision in 1973 but wasn't asked a single question about abortion at his confirmation hearing. He also recalled longtime Senate Judiciary Chairman Strom Thurmond of South Carolina bringing him to his office to talk about Thurmond's view of capital punishment.
Thurmond never asked Stevens his opinion, thinking that would be improper.
Some senators agree. Sen. Jon Kyl, R-Ariz., a member of the Senate Judiciary Committee, was one of the opponents of President Barack Obama's new health care law and knows some senators probably want to ask Kagan about it.
Kagan "knows all eyes are going to be on that, and she'll probably give some platitude about, you know, 'It has a certain kind of meaning, but I'm not going to tell you how I might rule in a case like the health care legislation.' And I think she shouldn't tell us that," Kyl told Fox News. "I don't want a justice who goes into the court with an idea of how she wants to rule in certain cases, with a predisposed notion of how justice should come out. I want her to read each case based on the facts and on the law and decide it."
Recent nominees have argued that not answering questions on issues that may come before the court keeps them from being accused of prejudging issues. Given the number of issues the Supreme Court may deal with in the future, it also allows them to avoid giving any answer which may sway a vote in the Senate against them.
Kagan herself argued for a more stringent questioning of Supreme Court nominees in 1995, words she can expect to hear thrown back at her by senators.
"Senators today do not insist that any nominee reveal what kind of justice they would make, by disclosing her views on important legal issues," Kagan wrote in a University of Chicago Law Review article reviewing "The Confirmation Mess," a book by Stephen L. Carter. "Senators have not done so since the hearings on the nomination of Judge Bork. They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner."
Without stringent questioning, the confirmation process "takes on an air of vacuity and farce," she said.
One senator, Oklahoma Republican James Inhofe, already has said he will oppose Kagan, partly because of that article. Inhofe said he was against Kagan because of "the seeming contempt she has demonstrated in her comments about the Senate confirmation process."
Senators place high value on their questions, which can be the last time a Supreme Court justice is required to answer questions from an elected official. However, they can't force the nominee to answer. They can only vote for or against the nominee, something senators have complained about for years when they haven't gotten the answers they wanted.
Senators also know that sometimes the answers they get from nominees don't necessarily foretell how a justice will rule when sitting on the court.
"We've seen nominees who tell us one thing during our private meetings and in the confirmation hearings and then go to the court and become a justice that is quite different from the way they've portrayed themselves at the hearing," Sen. Herb Kohl, D-Wis., said to then-nominee and now Justice Sonia Sotomayor at her confirmation hearing last year.
Senators plan to investigate Kagan's past and come up with questions they hope will make her reveal her judicial philosophy and provide some hint as to what kind of Justice she would be. Kagan would become the only member of the current court who had no prior experience as a judge, so she has no prior court decisions to scrutinize.
"Given that Ms. Kagan does not have a judicial record, it will be especially important for senators to inquire as to her views on the Constitution and the role of the court," said Sen. John Thune, R-S.D.
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