Kagan to Hatch: Ask me tough questions
Politics » Senator voted for her previously, but won't commit.
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It's a role Sen. Orrin Hatch seems quite comfortable in: quizzing Supreme Court nominees during marathon Senate Judiciary hearings.

But President Barack Obama's new high-court pick has been highly critical of the give and take. Elena Kagan has argued senators have allowed nominees to duck substantive questions, resulting in hearings that are nothing more than "a vapid and hollow charade."

Kagan's spirited 1995 critique of the modern-day confirmation hearings is likely to be a major topic of conversation when she sits before the committee later this summer, just as it was when Obama nominated her to her current post as solicitor general early last year.

Hatch heaped praise on Kagan during that February 2009 hearing, calling her an "excellent lawyer." The Utahn subsequently became one of seven Republicans to support her nomination.

But Hatch said Monday that just because he voted for her as solicitor general does not mean he would support her Supreme Court bid.

"I have an open mind," Hatch said, "and look forward to actively participating in the confirmation process."

But if her 1995 law review article about the book The Confirmation Mess is any indication, Kagan may not be excited about this process. She called it "a peculiar ritual dance" in which senators express their constitutional views while nominees get away with vague answers.

Kagan lamented that nominees "stonewalled" senators after the failed 1987 nomination of Robert Bork, the last high-court pick to directly answer senators' questions.

After Bork, she argued, "subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.

Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."

Kagan's frustration stemmed partly from her experience as a Democratic staffer for the Judiciary Committee working for then Sen. Joe Biden.

In this capacity, she observed the confirmation of Ruth Bader Ginsburg.

Kagan argued senators should focus on the "votes" a nominee would cast, her legal perspective and the direction she would move the court.

In a rather humorous footnote to her article, Kagan wrote she hadn't changed her mind even though "the Senate turned Republican and Orrin Hatch assumed the chairmanship of the Judiciary Committee. The conclusion of this review still holds -- even if I am no longer quite so sanguine about it."

Fourteen years later, in her 2009 confirmation hearing, Hatch questioned how Kagan could square this view with the need for judges to be impartial.

Kagan said her opinion has shifted over time. She now supports "some real reticence from judicial nominees" and said she no longer believes that probing how a nominee would decide a case could greatly benefit the public.

What apparently hasn't changed is her view of the confirmation hearing as a flawed public spectacle.

"That leaves the question just what these hearings should be about -- what matters senators should explore with the nominee and how the nominee should be evaluated," she wrote in a response to a 2009 question from Hatch. "I confess to finding these questions very difficult."

Hatch also might find himself in a difficult spot with this nomination. He has lauded Kagan's credentials and supported her for her current post, but in today's political climate it may be tough for many Republicans to vote for a Supreme Court nominee tapped by Obama.

Hatch released a statement only minutes after Obama officially named Kagan, saying that his past support shouldn't be seen as a sign of what's to come.

"Her previous confirmation and my support for her in that position do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her," Hatch said. "Any Supreme Court nominee should have an impressive résumé. The more important qualification is judicial philosophy and a nominee's understanding of the power and proper role of a justice in our system of government."

Obama twice consulted with Hatch, a senior member of the Judiciary Committee, before announcing his choice. Hatch, a former committee chairman, has supported every Supreme Court nominee in his 33-year Senate career, except for Sonia Sotomayor, an Obama nominee who joined the court last year.

Sen. Bob Bennett, R-Utah, who also voted against Sotomayor, said: "Americans deserve a Supreme Court justice who will uphold the Constitution and apply the law impartially. I look forward to reviewing Ms. Kagan's record and having a vigorous and thorough debate."

The Judiciary Committee expects to hold confirmation hearings this summer with the intention of filling Stevens' seat before the start of the fall term.

mcanham@sltrib.com

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