Commentary Magazine


Refuse to Vote Until Kagan Shows Her Cards

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.