Kagan

Glenn Greenwald does not care for Elena Kagan's intellectual dishonesty. In 1995, Kagan got grouchy about the confirmation process, basically saying the process was a charade and that nominees should have to reveal their views on important legal issues. Now that she's walked a mile in a nominee's shoes, she's not so sure about that anymore and will be keeping her comments as vague as possible. Basically.

Having no clue about jurisprudence or government, I turned to a knowledgeable person. Said person had some smart-sounding ideas, but damn near had a panic attack when I asked for a guest contribution to my blog. To keep this person's identity secret from the two people who read this blog, I will refer to them as The Contributor. Further--and this is painful for me--I'll use the grammatically incorrect "they/their/them" to avoid gender pronouns. Contributor -- do you see what you've done?

The Contributor's first response to the Greenwald article was disappointment. "I would expect [more] coming out of the Obama team braintrust." The Contributor felt first of all, that the backtrack itself could have been finessed and presented more elegantly. Second, The Contributor bemoaned the trampling of a nuanced idea.

A critique of the nomination process is more complex that a simple, "Nominees should talk straight." Rather, the entire process is a "vapid and hollow exercise" due not only to the nominee's refusal to say anything of substance, but also to the necessity for such sidestepping and vagueness. The use of buzzwords and litmus tests has created an environment in which a nominee can't answer questions directly and have a hope of being confirmed.

Given this reality, The Contributor isn't upset that Kagan is going to follow her predecessors' path. Rather, The Contributor wishes that Kagan could have held on to the core of her idea, rather than retracting it completely and "pretending that she's thought about it more." My next question was, "Well, what should the process look like, if not this?"

The Contributor is not sure what the best, theoretical solution is--we didn't even get into the practical aspects--but here were some thoughts that came up. First, being a justice is not about one's personal beliefs, so there is merit in avoiding questions that probe into these areas. Second, The Contributor maintains that it is a dangerous game to give hypothetical case details and demand an answer. Court cases are more complex than can be summarized in a few sentences.

At this point, I suggested a comps-like exercise whereby the nominee is given a full case record, complete with transcripts, and whatever else constitutes a complete record. (Like I said -- I don't anything about this stuff.) The nominee would then be given an opportunity to note what questions he or she would have asked in the course of the case and would be asked to write an opinion.

The Contributor thought a comps exercise could be a fun idea. (The Contributor is a big ole nerd.) But a problem with this approach was noted. Namely, the grading is left up to the (mostly partisan) senators, to whom The Contributor may or may not have referred as "yahoos." (My main contribution to the debate was to point out that at least the House isn't involved in confirmations. We could have Michele Bachmann asking questions.)

This discussion led to The Contributor's final point. The process as it stands is, at its heart, a power grab by the Senate. The Senate is meant to be a check on the President's power, but has become about the Senate making the decision itself. It has gone from, "This is a perfectly reasonable candidate," to "This person is not perfect, because she disagrees with me on [insert hot button issue here.]"