And Ms. Kagan offered sometimes caustic observations about the qualifications and jurisprudence of four members of the court she now hopes to join.
About Justice Clarence Thomas, for instance, Ms. Kagan wrote that the Senate would have confirmed him easily in 1991 even though “his substantive testimony had become a national laughingstock.” The reasons he faced a fight and only barely made it onto the court, by a vote of 52 to 48, Ms. Kagan wrote, were “the weakness of Justice Thomas’s objective qualifications and the later charges of sexual harassment.”
Justice Thomas had served for about a year and a half as a federal appeals court judge before his appointment, while Ms. Kagan, who is the United States solicitor general and a former dean of Harvard Law School, has no judicial experience. But she addressed that point in her article, too, 15 years before it became personal.
Must a nominee “have served on another appellate court?” Ms. Kagan asked in the article, called “Confirmation Messes, Old and New” and published in The University of Chicago Law Review. “Or may (as I believe) she demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law or governmental service of some other kind?”
Note that Ms. Kagan might as well have been describing what would turn out to be her own résumé: associate at a Washington law firm, law professor at the University of Chicago and Harvard, legal and policy work in the Clinton White House, solicitor general.
In the article — a 10,000-word review of “The Confirmation Mess,” a 1994 book by Stephen L. Carter — Ms. Kagan said that confirmation hearings, the crucial ritual in the journey from nomination to the Supreme Court bench, are these days stylized, hollow and all but worthless. The moment at which the public might briefly pause to consider a nominee’s conception of the Constitution, she wrote, had degenerated into “a repetition of platitudes.”
She called on the Senate, in words that will now haunt her, to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.”
Ms. Kagan had some recent firsthand experience with Supreme Court nominations when she wrote the article, having served as special counsel to the Senate Judiciary Committee during the nomination of Justice Ruth Bader Ginsburg in 1993.
Ms. Kagan wrote with amusement and admiration of the nominee’s finely calibrated technique in avoiding answers.
“Justice Ginsburg’s favored technique took the form of a pincer movement,” Ms. Kagan wrote. If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote. If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.
Ms. Kagan explained what had counted as too specific: “Roughly, anything that might have some bearing on a case that might someday come before the court.” She also described what had been too general: “Roughly, anything else worthy of mention.”
“Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg’s legal views if he pitched his question at precisely the right level of generality,” Ms. Kagan wrote. But that sweet spot, she suggested, was vanishingly small.
Justice Stephen G. Breyer, who joined the court in 1994, “was smoother than Justice Ginsburg, but ultimately no more forthcoming,” Ms. Kagan wrote.
But she also noted an important exception to their strategy of saying as little as possible, one that may turn out to be central at Ms. Kagan’s own hearings.
“Both justices discussed with candor and enthusiasm issues on which they previously had written,” Ms. Kagan wrote, referring to Justice Ginsburg’s academic work on gender discrimination and abortion and Justice Breyer’s work on regulatory policy.
In the process, she said, glimpses of the nominees’ judicial philosophies emerged. Justice Ginsburg appeared to be “a cautious, incrementalist common lawyer,” and Justice Breyer “an antiformalist problem solver.”
Ms. Kagan’s own paper trail consists of little but academic work, mostly on the First Amendment’s speech and press clauses and on administrative law. Her article on the confirmation process suggests that she may well follow recent tradition in discussing those topics, at least, expansively and without reservation.
Ms. Kagan, without naming names, added that “it is an embarrassment” that the president and Senate do not always insist that a nominee’s accomplishments provide evidence of “an ability not merely to handle but to master the ‘craft’ aspects of being a judge.”
She did say that President Bill Clinton’s two appointees, Justices Ginsburg and Breyer, “stand as models” on this point.
She also partly excluded Justice Antonin Scalia from this critique, praising the “quality and intelligence (even if ultimate wrong-headedness)” of his work.
Asked about the 1995 article at her confirmation hearing last year for her position as solicitor general, Ms. Kagan held it at arm’s length.
“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 and what she thought,” Ms. Kagan said of Justice Ginsburg.
Things looked different now, Ms. Kagan said. “The Senate has to get the information that it needs,” she said, “but, as well, the nominee, for any particular position, whether it’s judicial or otherwise, has to be protective of certain kinds of interests.”
The idea that a good Supreme Court justice merely applies the law, as Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor both asserted at their confirmation hearings, misses something important about the nature of the Supreme Court’s work, Ms. Kagan suggested back in 1995, proposing a thought experiment.
What if, she asked, President Clinton had proposed picking a justice by conducting a lottery “among Richard Posner, Stephen Breyer and Laurence Tribe because they seemed to him the nation’s three smartest lawyers.” (Judge Posner is one of the nation’s most prominent judges; Mr. Tribe, now a Justice Department official, is a leading constitutional scholar.)
Ms. Kagan’s point was that no such lottery could possibly do and that, indeed, the very idea demonstrates “a deficient understanding of the judicial process.”
“It should be no surprise by now,” she wrote, “that many of the votes a
Supreme Court justice casts have little to do with technical legal ability
and much to do with conceptions of value.”