Now that President Obama has nominated Solicitor General Elena Kagan for the Supreme Court, the Senate begins what is likely to be among its most difficult confirmation processes. Kagan has no previous experience as a judge and a less-than-stellar performance in her present position, so it becomes critically important that the Senate not rush to complete its consideration of her nomination. Detailed questions must be asked of her, and senators should demand that she provide detailed answers explaining her views. With virtually no paper trail of court decisions by which to evaluate her suitability for the nation’s highest court, the usual reservation about a nominee avoiding public commitments on particular issues before confirmation should not apply in Kagan’s case. The Senate should, in short, give Kagan’s nomination the same kind of “serious discussion of the meaning of the Constitution, the role of the courts, and the views of the nominee” as, in a 1995 University of Chicago Law Review article, she described the confirmation hearings on Judge Robert Bork in 1987.
Two issues in Kagan’s background are of particular concern. First, there are serious questions about her preparation in the Citizens United case before the Supreme Court. At one point during the oral arguments before the justices, Deputy Solicitor General Malcolm Stewart was asked by Justice Samuel Alito if the government could ban the materials presented in the Citizens United video if it were instead published in a book. Stewart said yes, thus endorsing government censorship of books. Kagan later told the court “the government’s position has changed” on the issue. Still, it ought to be a major concern for senators that any of her lawyers would argue that the government can censor criticism of incumbent congressmen in books or any other media besides television. Kagan’s views on censorship of political speech thus are a first-order issue.
