"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public." — Elena Kagan, 1995
Supreme Court nominee Elena Kagan must be psychic.
Fifteen years ago, she called the nomination hearings "a vapid and hollow charade." Last week, she ensured that her prediction came true. After more than nine hours of questioning, we still lack critical insights into how Justice Kagan would approach some of society's most pressing questions before the court — let alone the slightest whiff of a judicial philosophy that would inform her decision making.
Since Ms. Kagan has no actual judicial experience, one can't help wondering if the nomination hearings were anything other than a political quiz show. They served the purpose of testing Ms. Kagan's ability to perform under pressure, but they told us precious little about how she might approach the basic rights that we associate with happiness.
This should be at least somewhat disconcerting to the American people. The Supreme Court is unique in that it serves to resolve disputes that have divided circuit judges. Perhaps more than any other judicial positions, Supreme Court justices must rely on their sense of equity to resolve issues that, by definition, have no clear legal answer. If we are going to give someone a life appointment to such a position, shouldn't we at least get a whiff of his or her beliefs?
With Ms. Kagan, we have no idea how she will apply the law because she has no judicial experience and very little legal experience. Unlike other recent Supreme Court nominees, Ms. Kagan has no written decisions to parse. She is an academic and a political adviser. For the most part, we have only her time as dean of the Harvard Law School and her time in the Clinton administration to glean insight into her thinking.
Regarding the latter, Senate Republican leader Mitch McConnell of Kentucky questioned Ms. Kagan on a series of notes that she had written while serving as a political adviser in the Clinton administration. On one page, Ms. Kagan scribbled that a proposed ban on soft-money donations "affects Repubs, not Dems!"
Mr. McConnell rightly seized on these documents to question whether "Ms. Kagan's work in the Clinton White House reveals a woman who was committed to advancing a political agenda — a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal." For this, Mr. McConnell was savaged in most liberal news outlets.
This marks quite a shocking turn of events. Just remember the chilling fire by which Janice Rogers Brown was consumed when she was nominated by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit. The Senate Judiciary Committee was poignantly ruthless in its attack against her, which seemed much more personal than anything else.
Miss Brown is a woman who is willing to uphold the principles of this country that she so stringently embraces. She was uninhibitedly attacked for her suggestion that Franklin D. Roosevelt's New Deal infected the public with an "underground collectivist mentality." Pundits accused her of being a backward-thinking woman who was turning her back on her own race — and Democratic pundits didn't stop there.
I am not arguing that there is anything wrong with this. As I remember it, Miss Brown was on the fringe of removing herself from the highly coveted position. Yet, she found miraculous strength to face an award-winning vicious attack by the opposition. This is the type of leader that America is known for and deserves.
On the national stage, that is a lot for anyone to go through — especially when the opposition is seemingly chanting in your backyard with pitchforks. If this is the way the opposition is willing to treat a U.S. Court of Appeals nominee, then how much more so a Supreme Court nominee?
There are serious, precedent-changing decisions that could come before the court in the next five to 10 years. For Republicans to weigh in with their concerns about Ms. Kagan's record and her sense of jurisprudence is only right and proper. To expect and do anything less is to diminish the awesome responsibility of the Senate's constitutional prerogatives to "advise and consent" no matter which party holds the chairman's gavel.
A Supreme Court nominee is a major weight on President Obama's reputation as well. I know he was able to pull a fast one on the media and shake off the importance of his relationship with William Ayers and the Rev. Jeremiah Wright Jr., but in this case Ms. Kagan is most likely going to assume one the most important positions this country has to offer. Americans should not, and will not, take this lightly.
Republicans, pundits and the public should not sit quietly while she continues to brush off questions that will expose her true motives behind her work. Yes, she will almost certainly not be stopped.
Yet, while she is on the national stage in front of the general public, it is the responsibility of Republicans, only because they are the ones who are willing to ask the tough questions in this scenario, to display before the general public, who may be unfamiliar with her work, what her quintessential motives are. After all, the process is about getting to know her, not letting her slide through a back door like some would say the health care bill was so cleverly able to.
The bottom line is that Americans eagerly desire to understand what politicians are craftily trying to slip past them. We have had enough of the deceit. And believe that everyone, whether ally or opposition, if put into a position of power residing over the American people, should be forced to answer the tough questions. If you can't answer them, then get out.
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