May 10, 2010
Just Answer the Question—A Commentary by Linda Greenhouse ’78 MSL
The following commentary was posted on newyorktimes.com on May 10, 2010.
Just Answer the Question
By Linda Greenhouse ’78 MSL
AMONG its other virtues, the nomination of Solicitor General Elena Kagan to the Supreme Court is an opportunity to rescue the confirmation process from the “vapid and hollow charade” that it has become.
The words in quotation marks are those of Ms. Kagan herself, from an article she wrote for the law review of the University of Chicago when she was an assistant law professor there in 1995. The article was a clarion call for substantive questions from senators and similarly substantive answers from Supreme Court nominees. The court and its justices, Professor Kagan asserted, are simply too important for anything less to be acceptable.
The implications of her analysis are little short of revolutionary. Although the 15-year-old article focuses on the confirmation hearings for Justices Ruth Bader Ginsburg and Stephen G. Breyer — whose confirmation strategy Professor Kagan described as “alternating platitudinous statement and judicious silence” in response to questions by senators who then failed to push the nominees further — it is hardly outdated.
In the years since, we have heard descriptions of justices as umpires who simply call balls and strikes (John G. Roberts Jr.) or who decide cases by matching the facts to the law, “with the law always commanding the result in every case” (Sonia Sotomayor). Professor Kagan, by contrast, did not flinch from the truth of the matter.
The position of a justice is “both a seat of power and a public trust,” she wrote, adding that justices’ votes often “have little to do with technical legal ability and much to do with conceptions of value.” A confirmation hearing should uncover a nominee’s “vision of the court” in specifics, not generalities. “Privacy rights, free speech, race and gender discrimination” — everything should be placed on the table for analysis, Professor Kagan wrote.
I hope very much that the nominee means now what she wrote then. But that won’t matter if, as I fear, her White House handlers muzzle her on the theory that there is nothing to be gained by departing from the minimalist approach to hearings that has been working.
That would be an unfortunate calculation. Despite taking great care to reveal almost nothing, Sonia Sotomayor received 31 no votes. Only nine of the 40 Republican senators voted for her. So what was gained by the minimalist strategy? I would argue that her hearing was a net loss — not only for the public, which missed a chance to learn something about how judges actually think and behave, but for progressives in particular. The Sotomayor proceeding allowed conservatives to claim a sort of moral victory: see, they crowed, the only kind of nominee who can make the grade is one who intones our anti-activist mantra.
No one has asked me, but I have a question to which I would love to get Solicitor General Kagan’s answer. Last October, in her second appearance before the Supreme Court, she defended the federal government’s position on the validity of a Congressionally authorized land swap in the Mojave Desert that left a Latin cross standing on land that had once been federal property, but was now privately owned. The question in the case, Salazar v. Buono, was whether this extremely odd real estate deal was a proper response to a decision that a private citizen had won in a lower court, which ruled that it was unconstitutional for the cross to be displayed on federal land.
Ms. Kagan argued that the plaintiff, Frank Buono, no longer had standing to pursue his challenge because he had testified earlier that as a Catholic, he had no general objection to crosses, just to crosses on government property. But the cross was now on private land; ergo, ran the government’s argument, no standing.
To be fair, Ms. Kagan did not invent this sophistic argument; she inherited it from the Bush administration. But she pursued it with enthusiasm. I thought it was preposterous, and so did the court, to claim that the man who had successfully brought the case had lost his right to dispute Congress’s end run around his lower court victory.
Only Justices Antonin Scalia and Clarence Thomas agreed with Ms. Kagan’s argument, and Justice Anthony Kennedy’s plurality opinion dispatched it in a few sentences. I would like to know what Solicitor General Kagan really thought of that argument. The answer matters because, although that case is over and done with, the question of whether to foreclose access to court for citizens seeking to vindicate their rights is very much alive and is almost certain to be a continuing pressure point within the Roberts court.
That’s only one question, and there are many others. We have waited a long time for a nominee willing to give answers.