The debate focused not on trivialities ... but on essentials: the understanding of the Constitution that the nominee would carry with him to the Court. Senators addressed this complex subject with a degree of seriousness and care not usually present in legislative deliberation; the ratio of posturing and hyperbole to substantive discussion was much lower than that to which the American citizenry has become accustomed. And the debate captivated and involved that citizenry in a way that, given the often arcane nature of the subject matter, could not have been predicted. 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...
[T]he real "confirmation mess" is the gap that has opened between the Bork hearings and all others (not only for Justices Ginsburg and Breyer, but also, and perhaps especially, for Justices Kennedy, Souter, and Thomas). It is the degree to which the Senate has strayed from the Bork model. The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy--muted, polite, and restrained--but all that good order comes at great cost.
The Los Angeles Times reports:
Kagan declined to comment on the article through a spokeswoman.
Last year, when asked about the article in her Senate confirmation hearing, Kagan tried to explain away her statements as the brash words of a young judiciary committee staffer when it was chaired by then- Sen. Joe Biden.
"I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought," she replied.
At the time that she wrote the article, Kagan was a 35-year-old professor of law at the University of Chicago.
