Her current role has no doubt given Kagan a very different point of view than when she complained in a 1995 book review that confirmation hearings had become “a vapid and hollow charade.” Indeed they have–but not because nominees refuse to state their views on specific issues.

Supreme Court confirmation hearings have become a vapid and hollow charade because too many senators spend their time posturing for the cameras and too many nominees insist disingenuously that judging requires little more than mechanical application of law to facts. Kagan called on senators in her 1995 book review to demand nominees’ “views on particular constitutional issues…involving privacy rights, free speech, race and gender discrimination, and so forth.” Such demands are understandable. Supreme Court nominees seek life tenure with no accountability to voters, ever, in a position with far more power than any senator has. Shouldn’t we know what they think about the issues that they will decide?

Well, no. The case against nominees’ disclosing their views about specific issues is overwhelming. That’s why no Supreme Court nominee has ever discussed his or her views extensively, with the exception of Robert Bork in 1987. And Bork did so only because he would have been doomed had he refused to explain his fiery public attacks on dozens of major constitutional precedents.

Bork was, of course, doomed anyway. The reasons for reticence, in ascending order of importance, are these:

– Litigants and citizens will not see as fair and impartial a nominee who has already prejudged issues and cases in her confirmation testimony. It’s true that a nominee who tells all would be disclosing no more about her views than any sitting justice who has spent a few years deciding Supreme Court cases. But sitting justices cannot avoid disclosing their views. And unlike a nominee fielding rapid-fire questions, a sitting justice announces his or her views only after studying briefs, hearing arguments, becoming immersed in the facts and law, conferring with clerks and colleagues, and reaching considered judgments.

– It would corrupt nominees’ integrity and compromise their independence to engage in back-and-forth discussions with senators about their views on issues that might come before them. The reason, as Chief Justice John Roberts explained during his own confirmation hearing in 2005, is that such discussions would degenerate into a “bargaining process” in which the nominee “promises to do certain things in exchange for votes.” To be sure, a nominee could try to draw a line between disclosing her current, necessarily nonfinal views on issues and promising how she will vote. But senators would not respect that line. They would put nominees under relentless pressure to make veiled or not-so-veiled campaign promises. And it might be impossible for any nominee who has disclosed her views on all the controversial issues to win confirmation without making campaign promises.

– Most important, perhaps, it might also be impossible for any full-disclosure nominee–whether liberal, conservative, or moderate–to win confirmation whether or not she tried trading her future votes for the Senate votes that she would need to get confirmed. Every candid answer would infuriate one or more of the hundreds of special-interest groups that swarm around confirmation hearings, and hundreds of candid answers combined would energize a coalition of opponents broad and diverse enough to defeat any nominee. If you doubt this, consider my detailed discussion in The Atlantic of why every one of the current justices would be defeated if they had to run on their records in hypothetical Senate reconfirmation votes.

To make things worse, if the president knew that his nominees would have to disclose their views to the Senate, he would be sorely tempted to choose them only after having White House officials grill candidates about their views in nonpublic pre-nomination interviews. This would create powerful incentives for candidates to tell their questioners what they want to hear. Presidents and their aides have long avoided such heavy-handed questioning both out of ethical concerns and because senators would be outraged. But that calculus would change if nominees were to start telling senators what they think about all the big issues.

In short, full disclosure by nominees would be a formula for confirmation gridlock and worse. This is not to say that Kagan must or should hide behind the wooden, “I just apply the law to the facts” caricature of the judicial process that then—Judge Sonia Sotomayor so egregiously put forth last summer. Her testimony was not only laughably simple-minded but also utterly at odds with her prior public suggestions that judicial impartiality is impossible and even undesirable. (See here for more.) All serious Supreme Court analysts understand that the reason why some justices consistently support outcomes that please liberals while others please conservatives is not that either group is unable or unwilling conscientiously to apply the law to facts. The reason is that at their level, there are persuasive arguments on both sides of most big cases, and choosing which side is more persuasive inevitably requires the exercise of subjective judgment.

Kagan knows that better than most of us. She can dignify the process, and still win confirmation, without pretending otherwise.

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