Let Kagan be Kagan

In a 1995 book review, Solicitor General Elena Kagan said Supreme Court hearings, since the early 1990s, had become a “vapid and hollow charade.”

She said this was because senators were unwilling to ask probing questions and nominees were inclined to reveal as little as possible about how they understood the law and the Constitution in particular.

Kagan probably was not planning all those years ago on being a nominee to the Court herself.

If she was, it would seem she was prepared to someday give senators ample reason to object to confirming her, given that she cited the confirmation hearings of Robert Bork (the last unsuccessful nominee to the Court) as a prime example of how the confirmation process should proceed.

Now that President Obama has nominated Kagan to the Court, however, she will likely not be inclined to be as forthcoming as was Bork.

During Bork’s confirmation hearings, she claimed, “The debate focused not on trivialities” but on Bork’s “understanding of the Constitution.”

Any discussion in which Kagan could be persuaded to discuss her opinions about specific clauses in the Constitution would give Republicans much greater reason to oppose her.

She also praised Bork’s hearings, which occurred during the fall of 1987, because, as she put it, “Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed.”

In the unlikely event that Kagan does take the Bork route and answer questions fully and candidly, we can expect a lively and informative summer of hearings.

Republicans will have license to do what they have most wanted regarding Obama’s judicial nominees — press them on specific aspects of the Constitution and, in so doing, find an excuse to vote “no” without appearing too un-statesmanlike.

Democrats, on the other hand, will be in the awkward position of wanting to shield a nominee who doesn’t want shielding while anxiously dreading the possibility that Republicans will ask about something too controversial and that Kagan will answer.

Kagan, though, would have a unique opportunity to personally change the confirmation process for the better, and, unlike Bork, she would likely not be punished for it — provided she didn’t manage to give too many moderate Democrats reason to oppose her as well.

This is because, unlike when Ronald Reagan nominated Bork, the president’s party has a majority in the Senate — and a sizable one at that.

Thus, even if Kagan encounters total resistance from Republicans by deciding to adopt Bork’s approach, she should have little difficulty gaining the support of at least 51 Democrats.

That, of course, means Kagan is almost certain to be confirmed whether she is candid or not but that her chances of being rejected do increase somewhat if she is.

Perhaps, then, the best possible outcome of this process would be for Kagan to do exactly what everyone is saying she can’t do — stand by her 1995 remarks about confirmation hearings and tell the Senate Judiciary Committee like it is.