The Volokh Conspiracy - Kagan Advances Without Answering Questions:

The Senate Judiciary Committee favorably reported the nomination of Elena Kagan to be Solicitor General by a vote of 13-3. Three Republicans voted against her nomination, and three more abstained, due to Kagan's failure to answer questions about her views on various cases and legal questions, despite having written previously that nominees should be more forthcoming than they have been in the past. The Washington Post's Robert Barnes reports:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter's book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom 'independence' is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative. . . .

Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested." . . .

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

For what it's worth, I think Kagan is more correct now than she had been in 1995. While I believe she should have been more forthcoming in responding to the Committee's questions -- some prior SG nominees certainly gave more complete answers to equivalent questions -- I also think it's long past time to retire the idea that the problem with confirmation hearings is that nominees are not forced to give more detailed answers about their personal legal and political views. Insofar as Kagan's reticence was prompted by concerns about how her answers could play out should she be nominated to the bench, it is further reason to abandon the Senate's ideological inquests. In my view, judicial confirmation hearings should focus on qualifications and temperament, rather than judicial ideology. I suspect Kagan has more sympathy for that view now than she might have in the past.

	[Jonathan Adler, March 8, 2009 at 3:01pm] Trackbacks Kagan Advances Without Answering Questions: The Senate Judiciary Committee favorably reported the nomination of Elena Kagan to be Solicitor General by a vote of 13-3. Three Republicans voted against her nomination, and three more abstained, due to Kagan's failure to answer questions about her views on various cases and legal questions, despite having written previously that nominees should be more forthcoming than they have been in the past. The Washington Post's Robert Barnes reports: She once wrote that nominees should answer questions from senators. And in no uncertain terms, either. Reviewing Stephen Carter's book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce." She thought that executive branch nominees, "for whom 'independence' is no virtue," really deserved to be grilled. Those statements apparently are no longer operative. . . . Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested." . . . "I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said. For what it's worth, I think Kagan is more correct now than she had been in 1995. While I believe she should have been more forthcoming in responding to the Committee's questions -- some prior SG nominees certainly gave more complete answers to equivalent questions -- I also think it's long past time to retire the idea that the problem with confirmation hearings is that nominees are not forced to give more detailed answers about their personal legal and political views. Insofar as Kagan's reticence was prompted by concerns about how her answers could play out should she be nominated to the bench, it is further reason to abandon the Senate's ideological inquests. In my view, judicial confirmation hearings should focus on qualifications and temperament, rather than judicial ideology. I suspect Kagan has more sympathy for that view now than she might have in the past.