Kagan: Confirmation Hearings are a "Charade"

Supreme Court nominee Solicitor General Elena Kagan sits at the start of her meeting with Senate Majority Leader Harry Reid, D-Nev., on Capitol Hill in Washington Wednesday, May 12, 2010.(AP Photo/Alex Brandon)
AP Photo/Alex Brandon
Elena Kagan
AP Photo/Alex Brandon

In her private meetings with Senators, Elena Kagan is making a point that's pretty hard to dispute. But in doing so, she's turning up the pressure -- on herself.

Kagan, the no-nonsense solicitor general, is criticizing past Supreme Court hearings as lacking in substance -- and the performance of at least one justice now on the Court, according to senators who talked to her.

"She identified a specific justice who she thought was not appropriate in responses," said Pennsylvania Sen. Arlen Specter after he met with Kagan. "I'm not going to tell you who it was, but I'm going to take a look at that record in preparation for the questioning."

Hers is a widely shared view: Senators pontificate; nominees stonewall.

"The last several hearings have been, as she has indicated, pretty superficial," said Wisconsin Sen. Herb Kohl, who met with Kagan yesterday.

Kagan tackled the problem in a 1995 University of Chicago Law Review article. She said the hearings had become a "farce" and a "vapid and hollow charade." Not since Robert Bork, she wrote, had any nominee candidly discussed his or her views.

Of course, perhaps there's a reason for that: The Senate rejected Bork. But her article became an issue in her hearings last year for solicitor general.

"I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant," Kagan explained last year.

Specter said today that Kagan didn't back away from her views, and stood by the word "charade."

She wrote in the article that the Senate should focus on substantive issues in the hearings--and Senators should expect the nominee to engage in a serious discussion about the Constitution, the role of the Court and the views of the nominee.

Kohl said Kagan told him in their meeting she hopes the hearings will be a "teachable moment." That certainly wasn't the case in last year's hearings for Justice Sonia Sotomayor. Her answers baffled people on both sides, and dismayed many liberals, because Sotomayor ended up sounding, at times, exactly like conservative Chief Justice John Roberts.

This Sotomayor quote, for example, could have been from Roberts himself: "The great beauty of this nation: that we do leave those law-making to our elected branches, and that we expect our courts to understand its limited role."

As Sen. John Cornyn of Texas told her at the time, "You appear to be a different person."

So Kagan is setting a high bar and raising expectations. Of course, as Kohl said, she hasn't talked about the hearings yet with her White House confirmation team. But already, these senators are expecting to hear a lot more from her than they have from past nominees.

And that, as Kohl put it, would be a real "public service."

More on Elena Kagan's nomination:

Dems, GOP Spar over Kagan's Experience, Bias More People Liked Sotomayor than Elena Kagan, Poll Finds Elena Kagan White House "Interview" Riles Reporters
Elena Kagan Takes Center Stage in 2010 Campaign Battles
Washington Unplugged: Kagan Riles Both Sides of the Aisle
Chip Reid: Why Kagan? In A Word: "Leadership"
Photos: Elena Kagan

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    Jan Crawford is CBS News Chief Political and Legal Correspondent. She is from "Crossroads," Alabama.