What to Expect When You're Expecting ... a Confirmation

Elena Kagan's Senate confirmation hearing for the Supreme Court will be pure theater. Too bad. Here's what they really ought to ask her.

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It's already well-known that Solicitor General Elena Kagan will be confirmed as the next Supreme Court justice of the United States. But first ... the show!

Elena Kagan is one in a long line of Supreme Court nominees who were confirmed by the Senate Judiciary Committee for another position before they were nominated to the Court. In other words, the same committee that will question her now just examined and approved her as solicitor general a year ago. Justices Scalia, Breyer, Ginsburg, Thomas, Alito, Roberts and Sotomayor had all been confirmed as appellate court judges before they were nominated to the high court. Thurgood Marshall appeared before the Senate Judiciary Committee three times in five years. Yet when Marshall was nominated by President Lyndon Johnson to sit on the Supreme Court, that didn't stop committee chair Sen.James Eastland (R-Miss.) from asking the former civil rights litigator, federal appellate judge and solicitor general of the United States, "Are you prejudiced against the white people of the South?" Nor was Sen. Strom Thurmond (R-S.C.) diverted from asking his usual litany of historical irrelevancies ("What committee reported out the 14th amendment, and who were its members?" Marshall's answer: "I don't know, sir").

The modern Senate confirmation hearing has largely become a show -- one in which each actor knows and plays his or her part with little improvisation. Opening statements by the senators are used to stake out sound bites for their core constituencies. Check! The sponsoring senators from the nominee's state explain why this nominee is exceptional, and provide some amusing anecdote about the nominee's mother (husband, wife). Check! The nominee introduces her (or his) charming family to show how "regular" she is. Check! Senators ask questions as though they've never examined the nominee's record before. Check! Senators ask questions they know the nominee can't or won't answer. Check! The nominee explains that she would like to answer, but she hopes that the senator will understand that she cannot answer a question about cases that might come before the court. Check! The nominee explains that she is not 1) an activist; 2) a racist; 3) liberal. Senators complain that the confirmation process has become like kabuki theater. And on and on.

This week is no different. No smoking guns. Just endless posturing that squanders the opportunity to help Americans understand what Supreme Court justices do and how they do it. Yet, the stakes are high these days because the Supreme Court takes fewer and fewer cases and shows greater and greater willingness to overturn congressional statutes (Citizens United v. FEC) and close the gates of litigation to average Americans (Ashcroft v. Iqbal).

We need to know what our Supreme Court nominees think is the primary purpose of our courts in America and their view about the right of citizens to access the courts. What about asking nominees to tell the American public what they think is the biggest problem facing our courts today? What does a nominee think of the growing trend among federal appellate courts of deciding cases without written opinions? Who should decide whether a written judicial decision will remain unpublished? How should federal judges respond to recent reports documenting the exclusion of African Americans from jury service in the South? Should Supreme Court justices place all of their financial holdings in blind trusts to avoid situations like the one that arose in the claim by apartheid victims against multinational corporations, in which the court had to recuse itself from hearing the case because too many justices had ties to the defendant corporations? It is rumored that Supreme Court conferences, in which the justices deliberate collectively about the cases before them, now last no longer than 20 minutes. Is the nominee in favor of longer and more engaged conferences? What does the court think is the purpose of the conference? What does the nominee think is the meaning of judicial impartiality?

These critical questions may not be as sexy as the standard ones about abortion and judicial activism, but they go to the heart of what Supreme Court justices do and what the American people need to know about our justice system. They're the kinds of questions that would be asked if confirmation hearings were a real job interview, or if the Senate Judiciary Committee were inclined to view the hearings as a much-needed educational opportunity for the American public.

Alas, we're unlikely to hear these kinds of questions put to the nominee. Instead, Republicans have already indicated their intention to follow the confirmation-hearing script. Senate Minority Leader Mitch McConnell (R-Ky.) last week refused to rule out a filibuster of Kagan's confirmation . Hogwash. Even the currently tin-eared Republicans wouldn't risk rendering themselves entirely ridiculous by filibustering the confirmation of the most noncontroversial, pragmatic nominee to the court since Justice Stephen Breyer. But keeping the filibuster tension in the air is part of the choreography of the Republican response to any nominee President Obama proffers. Democrats' questions are also unlikely to provide more light, since they follow the script that requires them to throw lobs at Kagan in which she gets to make reassuring, intelligent, but largely unrevealing statements that sound sufficiently "judicial" in tone.

It's dispiriting, to be sure. But such is the nature of the modern confirmation hearing. Opposition Senators push all of our most sensitive buttons about race, gender and politics in an appeal to their core constituencies. The nominee reassures us that she or he will rule just on "the law," and we never learn more about the judicial process, about the real problems of access and transparency in our justice system, and the power of Supreme Court justices to transform our judicial system.

Thankfully, we're unlikely to see a repeat of last year's shameful performance by senators Session & Co. as they dressed down Judge Sotomayor on her "wise Latina" comments and challenged the integrity of a distinguished federal appellate court judge, but it's just as likely that Republican senators will pull out their talking points to try and discredit Kagan's record -- whether by distorting her record of support for the military or on the grounds that she's "too political," based on her past as a member of the Clinton administration.

Senators Sessions, Tom Coburn (R-Okla.) and Jon Kyl (R-Ariz.) are likely to pretend that the very future of our republic rests on whether a former Harvard Law dean and solicitor general understands the Constitution well enough to serve on the court. Sen. Lindsay Graham (R-S.C.) will gamely try to save his colleagues from looking like partisan hacks, by asking, with great earnestness, a few complex questions about the commerce clause or separation of powers. The Republican opposition plans to bring in members of the military to talk about the harm caused by Kagan's initial exclusion of military recruiters from Harvard. This will be about as effective as bringing officer Frank Ricci to testify about how he was personally affected by then-Judge Sotomayor's decision in the Ricci v. DeStefano firefighter case. But no matter. It's good theater. The Democrats will spend their time asking questions and bringing witnesses designed to counter the Republicans' anticipated moves.