We're down to the wire. The hearings begin in the morning.
Generalissima Kagan told us 15 years ago that confirmation hearings for Supreme Court justices should have substance. The senators should demand, and the nominees should provide, actual substantive answers on matters jurisprudential. The candidates should be, er, candid. Don't hold your breath.
It seems a safe bet (though until it happens, it's only a bet) that she will disavow and dissemble.
As Adam Liptak reports in the Times, William Rehnquist made the same point as Kagan in the Harvard Law Record in 1959. Twelve years later, as a candidate for the Court facing questions from the Senate Judiciary Committee, he rejected his prior view. Senator Phil Hart asked him if he had reconsidered what he wrote in that article. Clearly, he had.
I think I did not fully appreciate the difficulty of the position that the nominee is in.
So there it is. And so it is likely to be with the Generalissima.
And yet, one wishes. (One might hope, but that seems too naive.)
Norm Pattis provides a set of questions he'd like the Senators to ask Kagan. They cover her work as a trial lawyer (oops, there is none) and call for her views on specific cases that the Court has decided (oops, she won't have any or she'll keep them secret or they'll be so trivial that she might as well either not have them or keep them secret) and ask how Supreme Court justices should actually go about deciding things (oops, they don't decide things, they just recognize a ball or a strike or what Madison or Hamilton [which one depends on your view of the issue] would have said or voilà).
Then, as a counterpoint to her (presumed) avoidance of answers, Norm reports that Gerry Darrow promises to do more.
I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change.
Meanwhile, indulging his own fantasy of substantive hearings, Doug Berman offers his own wish list.
Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:
1. Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?
2. Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?
3. Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?
4. What are your current views of the pros and cons of the modern exclusionary rule?
5. What are your current views of the pros and cons of the modern death penalty?
6. What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?
Of course, his is as much fantasy as Norm's. Even if he could get senators to ask, General K won't answer.
Still, it's a fair parlor game.
Herewith (thought I'd try sounding legal):
- If it is not proper for you as a candidate for the Court to say whether you believe a recent decision of the Court was correct because you might be called upon to opine on a similar issue if confirmed, why is it proper for a judge or justice who voted in the prior case to sit on the future one?
- Too obscure? OK. Justice Scalia has indicated that the Constitution is not offended by the execution of a factually innocent person assuming the person has had sufficient, albeit ultimately unavailing, procedural protections. Do you agree or disagree? Well, if you won't say, because the question might come before the court and it would be improper for you to have suggested how you'd answer, then isn't it also improper for Justice Scalia to sit on that case? And also for Justice Ginsburg, who disagreed with him?
- So then, was the Court right or wrong when it decided Citizens United? Would you vote to overrule it? Why or why not?
- While you're answering that question, explain in detail how a justice should properly decide whether to overrule a precedent? Give specific examples of how the Court decided properly and how it decided improperly.
- This term, the Court held that when a lawyer is super-duper-grossly negligent in missing a filing deadline for a habeas corpus petition and the client acted with mega-diligence to prevent that and then to file his own pro se petition, it might be possible to excuse the delay and the client may still seek habeas relief. But, the court said, there's no excuse for the delay and the can't can't seek relief if the lawyer was just negligent. Can that possibly be right? Why or why not?
- Should we take as the basic presumption that people have the right to sue to enforce statutory and constitutional guarantees unless a proscription of the individual right to sue is absolutely clear or should we presume that individual have no right to sue unless it is absolutely clear that they may sue to enforce their rights?
- On what legitimate basis, if any, should we afford absolute civil immunity to any government official for actions which are illegal or unconstitutional? On what legitimate basis, if any, should we afford qualified civil immunity to any government official for actions which are illegal or unconstitutional? If such immunity is improper, would you vote to reverse the decisions that allow it?
- Is the Bill of Rights a contract to be narrowly construed or a guidepost to be understood expansively?
- How much wood would a woodchuck chuck if a woodchuck could chuck wood? Why are you more likely to try answering that question than any of the others?
Senators, the floor is yours.