At least according to Mike Allen’s Playbook:
- Look for President Obama to name his Supreme Court pick Monday, and look for it to be Solicitor General Elena Kagan, a former Harvard Law dean. The pick isn’t official, but top White House aides will be shocked if it’s otherwise. Kagan’s relative youth (50) is a huge asset for the lifetime post. And President Obama considers her to be a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions The West Wing may leak the pick to AP’s Ben Feller on the later side Sunday, then confirm it for others for morning editions. For now, aides say POTUS hasn’t decided, to their knowledge
If that happens, it will be interesting to see what the members of the Senate Judiciary Committee have to say about these comments that Kagan made about 15 years ago:
In 1995, after spending time as a staff lawyer on the judiciary committee during the nomination of Justice Ruth Bader Ginsburg, Kagan made clear her frustrations: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”
Kagan’s opinion appears in a 1995 book review of “The Confirmation Mess” by Stephen Carter. In her lively and at times humorous piece, Kagan takes issue with Carter’s 1995 thesis that the process has broken down, in part, because Senators are too focused on getting candidates to reveal their views on important legal issues.
Kagan wrote that the last truly substantive hearing was that of Reagan nominee Robert H. Bork, who failed in 1987 to get Senate support for his nomination to the high court. Many felt that Bork was in part to blame for his failure as a nominee because he answered so many questions about his legal philosophies that Senators were more easily able to oppose him.
“The Bork hearings were the last hearings where a nominee was able to engage the Senators,” said David Yalof, a political science professor at the University of Connecticut. “But Bork lost. Candidates since have followed the anti-Bork blueprint. The Souter blueprint if you will: say as little as possible without the appearance of stonewalling and you will be successfully confirmed.”
Kagan argues that the Bork hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.
“The real ‘confirmation mess’ ” she wrote, “is the gap that has opened between the Bork hearings and all others.”
“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”
“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”
Kagan is right that the confirmation hearings have turned into little more than political posturing, but she’s gets it wrong in not realizing that it was, in fact, the Bork hearings, and only a few years later, the Thomas hearings, that pretty much guaranteed that the Supreme Court nomination hearings would never deal with real substance again.
Thanks to over-reaching by the Democrats, and outright smear campaigns, the lesson that nominees, and subsequent Administrations, have taken from those disasters was to say as little of substance as possible. On the other side of the aisle, Senators of both parties learned from Ted Kennedy and Joe Biden that it is more advantageous to use the nomination hearings as an opportunity for political grandstanding, than as an opportunity for discussions of important Constitutional issues.
If she is indeed the nominee, Kagan will learn this lesson fairly quickly.