If Elena Kagan’s going to be a Supreme Court justice for the rest of her career, Republicans want to know as much about her ideology as they can. There’s just one problem: She’s a mystery to almost everybody. For that reason, they say they may spice up her confirmation hearing when she comes before the Senate Judiciary Committee.
In interviews, three of the top Republicans on the Judiciary Committee told me they’re likely to approach the Q&A a bit differently than they usually do. They’re just not saying—or don’t know—how.
“I think there’s gonna be some, yes, absolutely, gonna be some difference in the approach,” said Sen. Jeff Sessions (R-AL)—the committee’s ranking member. “I’m not sure how that’ll play out.”
“It’s no use kidding. It’s more difficult with somebody who doesn’t have the paper trail or nearly the documentation that a jurist has,” said Sen. Orrin Hatch (R-UT). “It’s bound to be different because [Sonia] Sotomayor had a lot of documentation a lot of decisions she’s made…. This will be different from that standpoint.”
That news will surely excite Kagan’s conservative (and liberal) critics, all of whom are unnerved by the fact that Kagan really is a bit of an unknown ideological quantity.
For years now, judicial confirmation hearings—particularly for Supreme Court nominees—have been among the most scripted events in Washington’s perennial festival of Kabuki theater. Once the President’s made his pick, and the aspiring justice has made courtesy rounds with Senate leaders, the Judiciary Committee convenes and…nonsense ensues. The nominees are almost always judges with long written records, so there’s not that much to learn. But nevertheless, senators use the hearings to ask posturing, politically charged questions, and the nominees dial up one of two or three standard excuses for not answering.
Kagan’s a little different. She was never a judge, her academic writings are relatively few, and the she’s spent fairly little time arguing cases before courts, so it really is difficult to know much about her ideology. In fact, a long-time friend of hers, legal expert Jeffrey Toobin had a hard time explaining her view, calling them “something of a mystery.”
Of course, Kagan is nothing if not savvy. Though she once blasted confirmation process as a farce, she’s now the Supreme Court pick for an administration that hates surprises. And just because senators try to pry information out of her, doesn’t mean she can’t figure out newer, more clever ways not to answer. That doesn’t mean they won’t try, though, and that could lead to a different, somewhat more charged atmosphere when Kagan appears before the committee.
The question now is: What tack will the GOP take? They’re not tipping their hand. Said Sen. Tom Coburn (R-OK): “The last thing I’d do is signal to her that I’m going to do something different.”
Brian Beutler
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at brian@talkingpointsmemo.com.
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