Confirmation hearings are relatively recent events in our history. The first Supreme Court nominee to receive a confirmation hearing was Harlan F. Stone, in 1925; the motive force was because he had been a senior official in the Justice Department, whose Attorney-General has been nailed in the infamous Teapot Dome scandal. Stone was clean, was confirmed and in 1941 was elevated to Chief Justice. As recently as 1945, Truman nominee Sherman Minton declined an invitation to appear before the Senate and testify but was nonetheless confirmed.
While hearings at times were very contentious, it was not until the 1987 Judge Robert Bork hearing that things went off the rails. Bork answered forthrightly as to his views, defended them ably, but was caricatured as a right-wing extremist by those selectively quoting provocative articles he had written, while the television Big Three networks, then still pretty much the only game in town for TV viewers, ignored Bork's record of having written 400 opinions in five years as an appeals court judge, without a single opinion being reversed by the Supreme Court. The caricatures won, and Bork went down.
Democrats then tried to "Bork" President Reagan's last nominee, Anthony Kennedy, and the two nominees of President Bush Sr. (David Souter & Clarence Thomas). All were confirmed, but after fireworks; Souter turned out to be a stealth liberal, Kennedy a swing Justice and Thomas a strong conservative. Republicans treated Clinton nominee Ruth Bader Ginsburg & Stephen Breyer with traditional deference and courtesy, with most voting to confirm both; Ginsburg & Breyer said little, but were confirmed, 96-3 (RBG) & 87-9 (SB).
With the confirmation hearings of John Roberts (2005, Chief Justice) & Samuel Alito (2006, Associate Justice) Democrats in effect spurned the GOP offer to return to traditional hearings, trying, though unsuccessfully, to "Bork' both nominees. In 2009 Republicans did engage Sonia Sotomayor on a broad range of issues, albeit with notable courtesy, and Sotomayor bobbed & weaved to a Supreme seat.
Nuggets from NRO Bench Memos re Kagan Day 3, by indefatigable, vastly knowledgeable Ed Whelan, former clerk to Justice Scalia. Kagan is following the Sonia Sidestep Playbook, giving as little as possible. But she did give some: (1) Kagan refused to answer a question from Oklahoma GOP Senator Tom Coburn as to whether Americans have "unalienable rights"--the phrase used by Thomas Jefferson in the second paragraph of the Declaration of Independence; (2) Kagan refused to answer SC GOP Senator Lindsey Graham's question asking if Thurgood Marshall,the ultra-liberal for whom Kagan clerked, who once said the Justice should "do what's right" and the law would follow, was a judicial activist; (3) she even avoided directly assail the 1896 separate-but-equal holding of Plessy v. Ferguson, lest she then be required to answer as to other cases!!
The WSJ editors note Kagan's Commerce Clause absolutism, leaving nothing to the States. WSJ pundit Dan Henninger wonders if "void-for-vagueness" jurisprudence--laws so vague no one can really understand the line between lawful & unlawful--will be applied to laws passed by Obama's Congress; not likely, and not likely Justice Kagan will be of much help either.
Lawyer Ben Shapiro identifies five areas in which he sees Kagan dissembling. Most noteworthy to me was on property rights, in which Kagan said that Justice Souter's egregious 2005 Kelo v. City of New London ruling was designed to return condemnation decisions to the States. To the contrary, the purpose was to allow local governments (state & city) to collude with powerful, connected developers under the flag of claimed economic benefits to condemn private property owned by those who hold real estate interests the local power brokers wish to shove aside. Many states were enraged by the ruling, and passed statutes protecting local property owners; only 8 states had limited eminent domain usage for economic development before the Court's ruling, but now 43 states have passed such laws.
VT Senator Patrick Leahy, chairman of the Judiciary Committee took the prize yesterday, with his citing the Thursday funeral of Senate lifer Robert C. Byrd as a reason for curtailing the hearings. If hearings are this awful and worth less than a Senator's funeral, is Taylor right, and nominees should just get a floor vote?
I think not. As evasive and, at times, dishonest, as Kagan has been, we know more about her than we did before. This will enable both parties to make their case for the kind of judges who should be picked for the federal courts, to the electorate this fall. The real reason for hearings now is not to vet the nominee, who if reasonably well-qualified and smart will not get tripped up at confirmation hearings. In the post-Bork + Roberts + Alito era, hearings frame judicial issues via sound bite clips, for the mass of voters.
Bottom Line. Kagan will be elevated, and show her progressive side come the First Monday this October. Voters will have their say come the First Tuesday after the First Monday in November.
Letter from the Capitol, LFTC, 9/11, Supreme Court, Conservative Politics
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