AUL - Kagan File: The "Confirmation Mess" Memo

Kagan’s Upcoming Confirmation Hearing: Another “Confirmation Mess”?


Before a new Supreme Court justice takes office, she is required to take an oath to uphold and remain loyal to the U.S. Constitution.  The Justice promises to “administer justice…under the Constitution and laws of the United States”[1] and “to support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the [Constitution]; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”[2]    

Vague or evasive answers have characterized some of the confirmation hearings of some recent Supreme Court nominees.  Supreme Court nominee Elena Kagan herself has lamented the failure of Stephen Breyer and Ruth Bader Ginsburg to give adequate answers during their confirmation hearings: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”[3]  Kagan stated that [a] nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.”[4]

  • Will Kagan answer questions posed to her next week to “educate the public” on her judicial philosophy and allow Senators to “properly evaluate” her?

Kagan highlights the confirmation hearings of Ruth Bader Ginsburg and Stephen Breyer to give examples of where nominees failed to answer questions.  She refers to their hearings as “official lovefests” because they “confronted no unfair or nasty opposition.”[5]  She states that “both nominees felt free to decline to disclose their views on controversial issues and cases”, and that this caused the confirmation hearings to “[lack] seriousness and substance... [, becoming a] troubling confirmation mess.”[6] 

  • Will Kagan decline to “disclose her views on controversial issues and cases” like abortion and Roe v. Wade? 
  • Will her confirmation hearing “lack seriousness and substance” or will she adhere to the standard she previously claimed was important and expound truthfully when asked about “prior case law, judicial methodology, hypothetical cases, or general issues like abortion?”

Kagan stated that the problem was “not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.”[7]  The “current confirmation mess,” according to Kagan, derived “from the Senate’s abandonment of that role and function”, namely, to ask questions and expect solid answers from the nominee as the Senators did during the confirmation hearing of Judge Bork.[8]  The way Justices Ginburg and Breyer addressed issues of substance during their confirmation hearings contributed to what Kagan calls a “confirmation mess.”[9] 

Kagan, who worked on the Judiciary Committee with Senator Biden during Justice Ginsburg’s confirmation hearing, relates that Justice Ginsburg’s “favored technique took the form of a pincer movement…When asked a specific question on a constitutional issue, Ginsburg replied that an answer might forecast a vote and thus contravene the norm of judicial impartiality…But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling.”[10]

  • Will Kagan avoid the “pincer movement” next week during her own confirmation hearing or will she too refuse to answer a “specific question on a constitutional issue” or find a “hypothetical beyond her calling?”

Kagan has also criticized Justice Breyer for his answers during his hearing that were not “forthcoming.”  “His favored approach was the ‘grey area’ test: if a question fell within this area—if it asked him to comment on issues not yet definitively closed—he must, he said, decline to comment.”[11]  “Like Justice Ginsburg, he could provide personal anecdotes—the relevance of which were open to question [—or] state settled law—but not whether he agreed with the settlement.  He could explain the importance and difficulty of a legal issue—without suggesting which important and difficult resolution he favored. What he could not do was to respond directly to questions regarding his legal positions.”[12] 

  • Will Kagan hold herself to the standard she criticized Breyer for failing to meet, namely, will she directly answer questions regarding her legal positions on issues?   
  • Will Kagan discuss “the importance and difficulty of a legal issue” AND “suggest which important and difficult resolution” she favors? 

Kagan criticizes the confirmation process and the Senators’ role in it as a “peculiar ritual dance, in which [the Senators] propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”[13]  Kagan states that “ignorance” of a judicial nominee should increase “the importance of their testimony” and bemoans the fact that the Senators failed to probe more deeply into the philosophies of Ginsburg and Breyer.[14]  Because so little is known about Kagan, the Senators must deeply question her during her confirmation hearing. 

  • When pressured by Senators to give insight into her judicial views, will Kagan respond and “propound her own views on constitutional law” and its role for a Supreme Court justice or follow in the footsteps of Ginsburg and Breyer—whom she criticized for their failure to engage in a legitimate discussion of legal ideas and viewpoints?  

Kagan also believes that the Senate ought not “to defer to the President” in his pick for the Supreme Court, but should instead adopt the position that “the Senate and the President have independent responsibility to evaluate, by whatever criteria are appropriate, whether a person ought to serve as a Supreme Court Justice.”[15]  She states that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”[16]   

  • Will Kagan facilitate “open exploration of [her] substantive views” and “enable senators and their constituents to engage in a focused discussion of constitutional values, to ascertain [her] values, and to evaluate whether she possesses the values that the Supreme Court most urgently requires?”[17]  
  • Will Kagan avoid “the kind of inquiry that would contribute most to understanding and evaluating a nomination,” namely, “discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues?”[18]   
  • If Kagan does not answer questions, her hearing will present to the American people exactly what she criticized regarding Breyer’s and Ginsburg’s hearings: “a vapid and hollow charade, in which repetition of platitudes replace discussion of viewpoints and personal anecdotes supplant legal analysis.”[19]  


Kagan clearly understands the importance of confirmation hearings and has articulated appropriate standards for nominees during questioning.  Kagan’s refusal to answer important questions would contradict the standard she herself advocated.  Senators should expect Elena Kagan to answer questions next week so that the confirmation process will not become what Kagan calls a “process so empty.”  Further, failure to ensure that Kagan provides solid answers to Senators’ questions would be unfair to the American people and would impede Senators from determining whether Kagan is qualified to be a Supreme Court justice, as Kagan herself acknowledged.  Indeed, if Kagan fails to answer questions, Senators should reject her nomination.

[1] Title 28, Part I, Chapter 21, Section 453 of the U.S. Code.

[2] Title 5, Part III, Subpart B, Chapter 33, Subchapter II, Section 3331 of the U.S. Code.

[3] Kagan, Elena. “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919, 940 (1995) (book review).

[4] Id. at 920.

[5] Id. at 920.

[6] Id. at 920.

[7][7] Id. at 920.

[8] Id. at 920.

[9] Id. at 925.

[10] Id. at 925-926.

[11] Id. at 926.

[12] Id. at 926.

[13] Id. at 930.

[14] Id. at 928. 

[15] Id. at 931.

[16] Id. at 935.

[17] Id. at 935. 

[18] Id. at 939.

[19] Id. at 941.