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?