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Lynn v. Sekulow

Barry, 

I agree.  The confirmation hearings produced little when it came to clear and direct answers from Elena Kagan about her judicial philosophy – specifically how she views church/state issues.

I can’t help but recall the words she used in a 1995 law-journal article.  After serving on the Senate Judiciary Committee staff during Justice Ruth Bader Ginsburg’s hearing, Kagan wrote that Supreme Court confirmation hearings had become a “vapid and hollow charade” and taken on “an air of vacuity and farce.”  

At the time, she offered a solution calling on a nominee to discuss “the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”

Here’s the problem – Kagan didn’t take her own advice.  She refused to discuss any of these at her own hearing, which prompted the question:  What happened to the Kagan standard?

The vote count is underway as the Senate Judiciary Committee – followed by the full Senate – votes on her nomination.

Sen. Orrin Hatch (R-UT), who voted in favor of Kagan in March 2009 when she was up for confirmation as President Obama’s solicitor general, has said he will not support Kagan’s nomination to the high court.

Sen. Hatch lamented that she chose not to answer many questions by a host of Senators – including questions about freedom of speech and campaign finance reform.  Based on her academic and political experience, Sen. Hatch concluded that Kagan would not embrace a judicial philosophy that he could support.  In his words, her record “shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court.”   He added:  “Her hearing offered nothing to neutralize the clear evidence of what kind of justice she will be.”

And, then there’s this analysis from Bloomberg news  which points to the notion that adding Kagan to the Court is likely to only further split the Court – and the voting – along partisan lines.

“Kagan’s career suggests she will join the Democratic group more often than not. She served for four years in President Bill Clinton’s White House, working to support abortion rights, bolster weapons restrictions and authorize federal regulation of tobacco.   ‘My views are generally progressive,’ the lifelong Democrat said at her confirmation hearing in June.”

Barry, I don’t think we will get a clear understanding of where Kagan stands on the church/state issues and a host of others until she is on the bench and begins actively participating in cases.

That’s certainly not the way it should work – but the carefully choreographed confirmation hearings did nothing to reveal much beyond what we already knew.

And, consider this:  if confirmed, Kagan would be the first successful nominee in recent years – according to a new Gallup poll – whose nomination was backed by less than a majority of Americans.

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