Benjamin Wittes, writing in the Washington Post, says that Elena Kagan deserves to be confirmed “in a matter of hours.” According to Wittes, Kagan is “obviously smart, capable, and well qualified, and her views obviously fall within the [mainstream].” The Senate and the public, he insists, “know everything they need to know to vote on her confirmation today.”
Wittes contends that the lengthy confirmation process will shed no light on what sort of justice Kagan will be. She will remain “a blank slate” and Senators will vote based on instinct and partisanship in the same way they would if the vote were held today.
There is a good deal of truth in these observations. But even if the entire critique of the confirmation process were true, it would still be a bad idea to confirm Kagan in “a matter of hours.” And this would be the case even if there were no possibility that research into her past writings would produce anything of note.
First, it is important, I believe, for the public to get a feel for the people who will decide such issues as how much power the president and the Congress have, what rights Americans possess as individuals, and the extent to which they can be denied benefits and opportunities based on their race. Kagan is unlikely to provide answers, or even useful hints, on these issues, but those who watch a little of the hearings will probably at least come away with a sense of whether they like her and whether they trust her.
They will then be able to reach a preliminary conclusion as to how well Presdient Obama performed his job when he selected Kagan. And they will have the opportunity to recalibrate their view of the kind of Supreme Court we have. All of this furthers the democratic process, in my view.
The fact that Kagan may well say much that is meaningless or insincere does not militate in favor of eliminating or sharply reducing the hearings. During presidential debates, the candidates say much that is meaningless and insincere. Much of what they say is discounted and, typically, few votes end up turning on what happens in the debates. Yet, few would advocate that we dispense with them.
The confirmation hearings also help us locate (or confirm) the mainstream of legal thought. When Sonia Sotomayor, knowing that the Democrats dominate the Senate, nonetheless walks away from her “wise Latina” remark and sounds (as one commentator put it) like the second-coming of William Rehnquist, it tells us that the old-fashioned, conservative theory of judging and of the Constitution still holds sway. This may mean little to the nominee, who can judge any way she pleases once confirmed. But it sends a signal that may constrain the White House in the future and a signal to the legal community in general. It’s no accident that some leftists, particularly in academia, were incensed by the portions of Sotomayor’s testimony that so roundly repudiated their “advanced” thinking.
There’s no doubt that the confirmation process can be infuriating. Senators should ask better questions and avoid personal attacks on the nominees. Nominees should offer more informative and candid responses. It’s not going to happen this time or in the foreseeable future. But when it comes to these hearings, the good should not be the enemy of the useful
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