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The One Question Elena Kagan Won't Get Asked—A Commentary by Adam Chandler ’11

The following commentary was posted on on June 29, 2010.

The One Question Elena Kagan Won't Get Asked
By Adam Chandler ’11

Here's something you won't learn about at Elena Kagan's confirmation hearings.

Every week or so, the U.S. Supreme Court renders the final decision in hundreds of cases, and its answer is almost always the same: deny. The court swats away about 99 percent of the 8,000 litigants asking for its attention each year, and many court watchers think how it chooses the few it considers rivals in significance the ultimate outcomes on those cases.

But don't expect the senators pressing Kagan for her views on gun rights, affirmative action or abortion to ask about her views on this issue, or how she would make the thousands of decisions a year about whether to grant review in a case.

The senators should not ignore this obscure but potent power when they evaluate nominees. The impact of those decisions has terrific consequence.

Rule 10 of the Supreme Court Rules gives guidance on the "compelling reasons" that merit the court's review of a case. The word "important" appears in the rule five times.

What makes a case "important"? That's like asking what makes a punishment "cruel and unusual." Both phrases are general and give judges latitude to draw different conclusions when applying them. The difference is that senators grill nominees on what they think "cruel and unusual" means but hardly ever ask what they think is an "important question."

The answer has consequences. To take one example, the American people wouldn't have a constitutional right to own firearms if the court had not agreed to take District of Columbia v. Heller in the first place.

It works the other way too. Earlier in June, the court refused to consider the case of Maher Arar, who sued U.S. officials after he was mistakenly seized in New York and tortured in Syria under the CIA's "extraordinary rendition" program. The lower court judges were in bitter disagreement, but when Arar appealed to the Supreme Court, the justices demurred, listing his case unceremoniously alongside 200 others it denied the same day, each without comment or explanation.

For many observers, Arar's was the definition of an important case. It implicated the country's national security policies and reputation abroad, and the news media have covered it extensively as it progressed through the federal courts. At least five of the justices had been unimpressed with it, though, and consequently, Arar's case met its end.

To be sure, the decision to grant or deny is not a judgment on the merits of the issue, and such decisions do not have precedential value. But they do provide final dispositions in thousands of cases each year, they determine which litigants are heard and they set the legal agenda of the federal judiciary.

The significance is hard to ignore, but over the course of 12 justices' confirmation hearings, from Justice Lewis Powell's in 1971 to Justice Samuel Alito's in 2006 -- proceedings that, in total, generated 12,000 pages of transcript and record material -- senators queried the substance of this critical responsibility exactly four times.

Ten of those 12 nominees received life tenure on the Supreme Court without being asked a single question about how they would approach this new role.

The Sonia Sotomayor hearings last summer were slightly more promising in this regard, thanks largely to Sen. Arlen Specter, D-Pa. Specter appears to have taken a personal interest in how the court chooses its cases lately, asking Sotomayor about her "standards for taking [a] case" and insisting that she agree that the Terrorist Surveillance Program and separation of powers cases the court had denied were "monumental historic conflict[s]."

Specter notified Kagan that he would ask her whether she would have granted specific cases that the court recently denied. But Kagan's hearings will be Specter's last, and there's no successor in sight.

If the Senate engaged Kagan on this issue -- and it should -- the country might actually learn something about how she will behave as a justice.

Perhaps that can salvage these hearings from devolving into what Kagan herself might call a "vapid and hollow charade."

Adam Chandler is a second-year law student at Yale Law School and a writer for SCOTUSblog, a blog covering the U.S. Supreme Court.