Why Kagan Should Stonewall the Senate

The Atlantic

One Elena Kagan assertion that seems supported by a broad bipartisan consensus is that senators should insist that nominees disclose their "views on particular constitutional issues . . . involving privacy rights, free speech, race and gender discrimination, and so forth." (Oddly, her bill of particulars omitted abortion.)

Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.

People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan’s 1995 case for telling all and hope that she won’t recant now.

But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.

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