I’ve contributed some initial reactions to the Washington Post‘s online “Topic A” feature on the Kagan nomination hearings. The general thrust of my remarks is that the Kagan hearings, thus far, are much like what we’ve come to expect in that she’s dutifully avoided revealing much about her personal legal views, despite her 1995 essay urging greater candor by nominees and more searching interrogation by Senators. I also note that Kagan, much like Sotomayor, has refused to defend a “progressive” constitutional vision, whether that articulated by the President or her onetime-mentor Justice Thurgood Marshall.
One of the other contributors to the feature, Walter Dellinger, has a contrary view. I suspect part of our difference comes from the fact that Kagan has not offered the stilted, almost scripted, responses to questions about judicial philosophy that made her sound like a John Roberts wannabe (and demoralized some liberal legal thinkers). Kagan has spoken more broadly about the judicial role, but without saying much that could be used to pin her down on her views of constitutional interpretation, let alone specific issues or cases. She’s also proclaimed that “we are all originalists” and that empathy should not play much of a role in judicial decision-making because “it’s law all the way down.”
The most interesting parts of the hearings to me thus far — and it’s still early — have been the exchanges discussing Citizens United and other cases she’s handled as Solicitor General. Here Kagan sought to discuss her decisions in these cases without revealing too much about how she might view similar cases that might come before the Court. I’ve found these exchanges more interesting than those on, say, her handling of the military at Harvard or her various White House memos.
[NOTE: This post was slightly edited as I hit “publish” too soon while drafting.]