As questioning of U.S. Supreme Court nominee Elena Kagan gets under way today, Republican senators are expected to highlight her lack of judicial and courtroom experience and her opposition while Harvard Law School dean to allowing military recruiters on campus due to the discriminatory "don't ask, don't tell" policy. Democrats will seek to defend the nominee, referencing her exceptional resume, reputation as a brilliant legal thinker and bipartisan collegiality. But if all the confirmation process offers is a predictable back-and-forth by partisans, with the nominee saying as little as possible, it will be another "vapid and hollow charade" as Kagan characterized the process in 1995. Kagan should be as forthcoming as she expected other nominees to be.
On the face of things, Kagan is an exemplary choice. She was first female U.S. solicitor general, the first female law dean at Harvard, an adviser in the Clinton White House and a former law clerk for Justice Thurgood Marshall. Her endorsements for becoming an associate justice to replace retiring Justice John Paul Stevens include a letter signed by eight former solicitors general from both political parties.
But as an academic Kagan's publishing record is light. She has never sat on the bench — a distinction she would share with about a third of the court's justices. As such, she has a special obligation to answer senators' questions directly. This is the American people's opportunity to know more about a person who would be deciding issues of great national importance, potentially including the constitutionality of President Barack Obama's health reform. And Kagan should give Americans a full glimpse into her judicial philosophy and approach to the law.
Obama sought a nominee who demonstrates fealty to the law but who brings compassion and empathy to its application. Kagan should say if she is going to be that kind of justice. Of course Kagan should not be prejudging cases that might come before her — for example, she should not answer whether the Constitution grants gays and lesbians the right to marry — but that excuse has been used by judicial nominees to refuse to respond to even basic questions. Kagan should use this demurral only when it is truly necessary.
During Kagan's long career she has kept her opinions assiduously to herself. She can't be undermined by her prior writings and speeches. But it makes her an enigma. Now the country needs to know more about how Kagan would influence American law. She should help fill in some of those details.