Election-law professor Rick Hansen (h/t Taegan Goddard) writes:
If you were trying to schedule Senate hearings on a Supreme Court nominee to garner the least attention possible, you could not have picked a day better than today. The sad death of Senator Byrd; the Supreme Court decides four major cases, including the gun case; Congress poised to pass a major financial reform bill, with now some uncertainty as to timing given the death of Sen. Byrd; the Afghanistan McChrystal fallout; continued concern over BP’s cleanup operations. It is no wonder that many Americans don’t know who Elena Kagan is.
Actually, they don’t know who she is because there is not much that is knowable. Most senators don’t have much more than her biography, her slender body of writings, and a pleasant office visit by which to assess her. Sen. Jeff Sesssions set forth the problem in his opening remarks:
Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it’s not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.
We know less about this nominee than we did about every other justice at this stage in the confirmation process. Part of this problem may be solved by a spasm of candor from the nominee. That’s not likely, and even if she is more forthcoming than expected, we have no basis by which to assess whether she will be a competent jurist. Democrats who rubber-stamp her on the theory that the White House must know something they don’t are taking a risk — and neglecting their constitutional obligation. I suppose it’s old-fashioned to expect that senators read groundbreaking legislation before they vote and to demand answers from an underqualified, stealth nominee. (These are the same folks who wax lyrical about Sen. Robert Byrd’s defense of the world’s “greatest deliberative body.”)
Unfortunately, senators insist on blathering on, asking unintelligible questions that give nominees the chance to run out the clock and flatter their questioner by commending the blather. Here’s a suggestion for the senators: ask a questions that are fewer than 20 words, ask them again if she doesn’t answer, keep track of the list of unanswered questions, and demand that she provide real answers before a vote is taken. Obama got through a campaign without being adequately vetted; it’s not a standard we should emulate for a lifetime Supreme Court appointment.