Previewing the Elena Kagan HearingsJune 24, 2010
The buildup to Supreme Court confirmation hearings normally leaves Washington, D.C., in a frenzied state. Robert Bork was the conservatives’ dream and the liberals’ nightmare. Clarence Thomas was replacing Thurgood Marshall. John Roberts was the first nominee for chief justice in nearly two decades. Sonia Sotomayor was the first Latina ever nominated. You get the idea — these hearings were seismic events that captivated the entire city and often times the nation.
Elena Kagan’s nomination, on the other hand, has barely caused a ripple. Her confirmation hearing begins on Monday, and if that is news to you, well, I can’t really blame you. Rarely has a Supreme Court nomination flown so far below the radar. Due to their limited quantity yet powerful nature, Supreme Court vacancies are an incredibly big deal. This time around, though, you wouldn’t really know it.
There are a few reasons for this. For starters, unlike all her would-be colleagues on the High Court, Kagan has never before served as a judge. As a result, she does not have a record of court decisions to dissect. There are no previous judicial opinions for us to pore over to glean a sense of her philosophy. Moreover, she has spent a good portion of her legal career as a law professor. In other words, she’s spent a lot of time teaching the law, rather than shaping it. Finally, she is thought to have a similar legal disposition to the justice she would replace, John Paul Stevens, meaning that the overall ideology of the Court likely won’t change much should she get confirmed.
Like I said, though, Supreme Court nominations are incredibly important, and all Americans would do well to pay attention. As is our custom, AAUW submitted a list of questions to members of the Senate Judiciary Committee that reflects our top priorities. We want the senators to ask about such topics as employment discrimination, Title IX, reproductive rights, church-state separation, and the First Amendment. As we avow in our judicial nominations position paper, all nominees should be subjected to the highest level of scrutiny.
What should we watch for in these hearings? Kagan’s most public stance on any one issue probably came from her time as dean of the Harvard Law School, when she spoke out strongly against the “don’t ask, don’t tell” policy with respect to gays in the military. You can bank on that story getting a lot of airtime. Kagan also took some newsworthy positions during her time as a policy advisor under President Bill Clinton. And as the current solicitor general — responsible for arguing the government’s position in certain cases that come before the Supreme Court— Kagan’s arguments in that capacity will also be brought to light.
Check back on AAUW’s blog each morning next week for a recap of the previous day’s hearing highlights. Just because it’s been quiet doesn’t mean there won’t be some fireworks!