Of all the things in the hundreds of thousands of pages of Supreme Court nominee Elena Kagan's paper trail, the one she may regret the most when her Senate confirmation hearing opens today is a 1995 University of Chicago Law Review article about the very process she's about to undergo. She argued that high court confirmation hearings had become useless "lovefests" between question-dodging nominees and compliant senators. The hearings revealed "far too little" about the nominees' views about the law and the constitution, she wrote.
And that was back before the confirmation hearings of Chief Justice John Roberts and justices Samuel Alito and Sonia Sotomayor set new standards for just how little a nominee could reveal. The three were so vague that one might have imagined they were cut from the same judicial cloth.
According to a C-SPAN poll released Thursday, 59 percent of those who watched part of the confirmation hearings for Justice Sotomayor or some other recent nominee rated the insights they got about the prospective judge's qualifications to be only fair or poor.
That's a particular problem when it comes to Ms. Kagan. We know that she has an impressive resume — she was a top aide in the Clinton White House, the first female dean of Harvard Law School and is now President Obama's solicitor general — but since she has never been a judge, we know little about how she would behave on the bench.
The rightward lurch the court has taken under Justice Roberts gives plenty of room for a robust discussion of differing conceptions of the law. Recent rulings on campaign finance, the rights of criminal suspects and the standards for public corruption cases, among others, provide an opportunity for senators and Ms. Kagan to explore the meaning of the constitution and the limits of federal power.
Senators will surely ask questions about these issues, and the burning ones likely on their way to the court, such as gay marriage and the legality of President Obama's health care reform legislation. But she will dodge them with the same excuse previous nominees have, that she could not say anything that would indicate prejudgment of any case that she might someday have to rule on, which covers pretty much everything.
Getting nowhere, Democrats will surely retreat to softballs and Republicans to attempts to tar her by latching on to a handful of details they can make seem vaguely disquieting.
The Sotomayor hearings focused inordinately on the judge's comments about the virtue of a "wise Latina" and the federal district courts' role in setting policy. The equivalents for Ms. Kagan appear to be her effort to keep military recruiters off campus when she was dean of Harvard Law School, her job as an adviser in the Clinton administration and her praise for the late justice Thurgood Marshall and for an Israeli judge few had ever heard of before, Aharon Barak.
Republicans have begun laying out their lines of attack in recent days, and they have begun to accuse Ms. Kagan of hostility toward the military during wartime because she would not allow the military to recruit students on the Harvard Law School campus because of the ban on openly gay service members. This is a peculiar fight to pick, since the vast majority of Americans support reversing that ban and Congress is near doing so. Moreover, it's not as if the ban on recruiters was Ms. Kagan's idea; Harvard had long kept the military off campus in accordance with its non-discrimination policies.
In the memos Ms. Kagan wrote while a legal adviser to former President Bill Clinton, Republicans have discovered that she took political considerations into account. Politics in the White House! Who could imagine such a thing?
The campaign against Ms. Kagan based on her long-ago clerkship for Justice Marshall and her praise for the unabashedly liberal jurist began immediately after her nomination. Apparently admiring the man whose legal work ended the doctrine of "separate but equal" is dangerously out of the mainstream. A new entry on the guilt by association front cropped up last week when Republicans started blasting Ms. Kagan for having praised Judge Barak, the former president of the Supreme Court of Israel.
The fact that Judge Barak is known as a champion of civil rights, or the difficulty of drawing many conclusions about how someone would behave as a U.S. Supreme Court justice based on admiration for a judge working in a country without a formal constitution, is apparently unimportant. Nor is the fact that Ms. Kagan's praise for him came in the same sort of context that conservative hero Justice Antonin Scalia said nice things about the Israeli. What is important to Republicans is that Judge Robert Bork has called Judge Barak "activist."
If that's all the Republicans have got, these hearings could be even duller than last summer's Sotomayor snoozefest.
And that is a shame. There are signs that the American public is growing frustrated by how little it knows about Ms. Kagan's views of the law. A CNN/Opinion Research Corporation survey released Friday showed that support for her confirmation had dropped from 54 percent in May to 44 percent now. The issue wasn't that Americans had concluded, as Republican senators will soon argue, that Ms. Kagan is dangerously liberal. Rather, the movement in the poll came from women and Democrats switching from supporting the nomination to being undecided. The public wants to know more about Ms. Kagan. We can only hope that when she's sitting in front of the Judiciary Committee this week, Ms. Kagan will strive to avoid the "air of vacuity and farce" that so offended her about confirmation hearings 15 years ago.