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KAGAN CONTRADICTS HER OWN ARTICLE

The stance

U.S. Supreme Court nominees should be more forthcoming at confirmation hearings.

Elena Kagan in a law review article published April 1, 1995.

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The ruling: FULL FLOP

We knew a flip flop might be coming after reading Elena Kagan's 1995 law review article on hearings for nominees to the U.S. Supreme Court.

She wrote that the typical confirmation hearing was "a vapid and hollow charade," marked by nominees who were cagey and uncommunicative about their views. "Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government," she added.

A law professor at the University of Chicago at the time, she wrote that nominees shouldn't say how they would rule on a specific case, but "a nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee ... usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion."

At her own confirmation hearing, though, she said some of that article wasn't quite right. What she got right back then, she said, was that it was inappropriate for a nominee to indicate how he or she might vote in a specific case. But now she realized there are other types of questions that could give hints to how a justice would vote in the future.

"I skewed it too much toward saying that answering is appropriate even when it would, you know, provide some kind of hints," she added.

Sen. Herb. Kohl, D-Wisc., asked her to comment on the Supreme Court case Bush vs. Gore, which pushed the disputed 2000 election to a conclusion.

Kagan evaded the question, saying she thought the court might consider the type of question again.

"And if it did, I would try to consider it in an appropriate way, reading the briefs and listening to the arguments and talking with my colleagues."

We find that Kagan has indicated she would not be answering questions she had previously said were not only permissible but desirable. So we rate her position a Full Flop.

Edited for print. For more see PolitiFact.com.

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