More Questions for Kagan

Building on Tim’s post about George Will’s latest column, and under the category of great minds thinking alike—at least with respect to what we need to see at the Kagan hearings next week—I also have an article proposing lines of questioning for the Supreme Court nominee. 


Several of my issue areas overlap with Will’s, and then I conclude:

Of course, Kagan will attempt to deflect these queries—or give a law professor’s explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).

But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government’s case. Moreover, as a leading scholar argued in an influential 1995 article, “the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”

That scholar? Elena Kagan.

She continues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”

If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.

Read the whole thing (which I’m told has been published in several papers around the country this week). Josh Blackman also has an interesting series of questions.