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Rao in WSJ: Kagan Nomination Provides Teachable Moment

Confirmation hearings for Supreme Court nominee Elena Kagan provide an opportunity for departure from what have become "incantations of the right formulas" without an examination of a nominee's actual beliefs, says Professor Neomi Rao in a Wall Street Journal op-ed. "Sticking to the script means that nominees are confirmed based on platitudes, and public discourse suffers as a result."

Rao points to Kagan's comments in a 1995 book review published in the University of Chicago Law Review in which Kagan categorized recent confirmation hearings as "a vapid and hollow charade" and explained the Senate should view hearings as an opportunity to probe the candidate's beliefs about the nature of the court and its conduct in order to gain knowledge and promote public understanding of the nominee's views of the judicial process.

Should Kagan choose to depart from what has become the customary script, her nomination might provide "an opportunity for a teaching moment about what the court does, how it affects the lives of ordinary citizens, and how individual justices make a difference in this enterprise," says Rao.

Elena Kagan and the 'Hollow Charade,' The Wall Street Journal, May 11, 2010. By Neomi Rao.

Excerpt:

"Ms. Kagan is right. I think Americans can understand that judges draw on a variety of tools in interpreting the law, and that these tools differ for judges based on their constitutional values.

"For example, when a statute is unclear, Justice Antonin Scalia might press harder on the language of the law, look at the context of specific words, and generally seek to understand what the written law means. He seeks to limit his own discretion, in part because the Constitution gives Congress, not the courts, the power to enact laws.

"By contrast, Justice Stephen Breyer might focus on the purposes of the law and look to sources outside of the Constitution—including foreign law—to come to a decision. He may consider the outcome that makes the most sense to him because he considers judges to be a part of the democratic process. These are fundamentally different ways of dealing with difficult cases and they reflect two distinct attitudes about the proper role of a judge.

"If President Obama wants to pick judges that are more like Justice Breyer and less like Justice Scalia, that's his prerogative. Elections have consequences for the appointment of judges, just as they do for public policy. But it would elevate the debate substantially if Ms. Kagan, former dean of Harvard Law School, could explain her views of the judicial process."

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