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Elena Kagan's first (and extremely important) decision

By Jack M. Balkin

There is a widespread, and thoroughly correct, perception that the Senate confirmation process (like so much else in the Senate, but I digress...) has become a scandal, though part of the scandal, of course, is the unwillingness of any nominee since Robert Bork to engage in a truly serious conversation with the senators (assuming, generously, that any of them is interested in such a conversation). Both Chief Justice Roberts's and Justice Sotomayor's performances were especially disgraceful because it is literally impossible to believe that two such accomplished and intelligent people could possibly have believed what they were telling the Senate. If Clarence Thomas should have been denied confirmation because of suspicions that he commimtted perjury when he denied ever having a conversation about Roe v. Wade, then one could make an even stronger argument with regard to the idiotic "umpire calling balls and strikes" proferred by the Chief Justice and the "empry vessel of the law" posture taken by Sotomayor.

As everyone now knows, Elena Kagan is fully aware of this scandal, having written about it in a 1995 review of Steve Carter's The Confirmation Mess. Linda Greenhouse had a typically acute column in the Times pleading with Kagan to answer the questions asked her, save for (relatively few) that would be clearly inappropriate.

So Elena Kagan's first decision is whether she will reinforce two truly terrible realities of our modern confirmation system: a) to put herself in the control of a "handler" who will, almost inevitably, give rotten advice with regard to serving the country, even if, by stipulation, the advice makes sense from a short-run perspective of gaining confirmation. Clarence Thomas, who is in fact a very able and interesting justice (whom I most often disagree with), was fatally disserved by his "handlers" who encouraged him to portray himself as an empty-headed fool who renounced anything he had ever written prior to his nomination. b) to accept the advice to stonewall the Senate (and the American people) by giving answers that no serious person, especially a veteran of such intellectual hothouses as the University of Chicago and Harvard Law Schools could possibly believe.

Forget he idiocy of asking her about specific cases. Instead, she should be invited to assess Richard Posner's portrayal of the Supreme Court in the 2005 "Foreword" to the November issue of the Harvard Law Revie, for starters, in which he portrays the Court as a thoroughly political institution (and he is not being critical). Posner is surely the only judge who's ever written a major book entitled "Overcoming Law," another book much worth discussing, as are recent books written by such denizens of the Harvard faculty as Laurence Tribe, Charles Fried, Adrian Vermeule, Mark Tushnet, and Jack Goldsmith, the last three of whom were hired during her Deanship. Or she could be asked to discuss Bruce Ackerman's Holmes Lectures, which were reprinted in the Harvard Law Review.

What I find dismaying is not only the possibility that Kagan will choose to replicate role models that she herself correctly exposed as deeply flawed. It is also the fact that most of my colleagues, I have discovered, think this is the "correct strategy," given the propensity of mad-dog Republicans to look for anything and everything that would throw stumbling blocks in front of her taking her seat quickly so that she begin doing the work she is so ably equipped to do. No one has any respect for the confirmation process or any belief that it could in fact serve as a vehicle of public education. Instead, everyone believes that it is completely broken, needs fixing, but that, practically speaking, nothing is to be done about it because everyone's short term interest is to continue pretending that it is worth respecting.

So my hope is that Elena Kagan, whom I deeply admire, will "just say no" (or, more fittingly, "go fuck yourself") to Rahm Emanuel when he suggests that she serve Team Obama by emulating John Roberts and Sonya Sotomayor and their utterly dismaying performances, whatever the costs to the integrity of our constitutional system or, indeed, to her own self-respect.

Full post as published by Balkinization on May 12, 2010 (boomark / email).