Questions for Elena Kagan, Supreme Court Nominee

President Barack Obama's Supreme Court nominee, Solicitor General Elena Kagan, will go before the Senate Judiciary Committee for confirmation hearings that begin on June 28.

Supreme Court confirmations prior to the new millennium, with a few exceptions such as Robert Bork in 1987, generally were approved according to a president's wishes. Arch-conservative Antonin Scalia received unanimous confirmation in 1986, for example, and ultra-liberal Ruth Bader Ginsburg in 1993 reaped only three negative votes.

However, this won't happen for Kagan. Accommodation by the rival political party is a thing of the past. Recent votes reflect an increasingly partisan Washington atmosphere.

George W. Bush's two nominees, Sam Alito and John Roberts, received split confirmation votes of 58-42 and 78-22, respectively. (Obama, as a freshman senator in 2005, opposed both.) Obama's first nominee, Sonia Sotomayor, was confirmed by a 68-31 tally.

If Kagan follows the leads of Alito, Roberts and Sotomayor, her answers will blend caution with outright evasiveness. Nominees avoid blunder, even if "blunder" is a forthright response. The goal, in football parlance, is to run out the clock, finish the game and claim the victory, even if it's without drama.

Even so, we can learn much about the candidates in how they respond, even if they don't answer directly. Here are five questions for Kagan I would pose, if only I were a United States senator:

What are your views on Roe v. Wade and on capital punishment?

My wording of this question, I believe, is fairly original. It always has struck me that many people who consider themselves pro-life on abortion are contrarily in favor of executions. On the flip side, many folks who are against capital punishment are pro-choice for abortion rights. I'm curious to see how Kagan (or any sitting justice, for that matter) would respond with the questions posed together.

How do you respond to criticism that you lack judicial and trial court experience?

I anticipate Kagan would answer that, on a nine-member court, at least one justice should bring a background other than a narrowly focused judicial career. Kagan might go on to say that the "common citizens" also should be represented, which would lead to the third question.

You say that you represent the common citizen, but your background is Princeton, Oxford, Harvard and the D.C. beltway. Doesn't this reflect elitism, rather than understanding common citizens?

The purpose of this question speaks for itself.

Ms. Kagan, you were a law clerk for Justice Thurgood Marshall, who once declared, "You do what you think is right, and let the law catch up." Do you agree with this statement?"

The point of this question, of course, is to engage her views on judicial activism. Plus, it's fun simply because it is an in-depth question that has a sort of gotcha element, without being overtly gotcha.

The Supreme Court recently ruled, by the usual 5-4 margin, that corporations have the same rights as individual citizens to contribute unlimited money to political campaigns. Do you agree?

Personally, I believe this was a horrible ruling, in that the Constitution says nothing to indicate that a corporation is a citizen. I'm curious how Elena Kagan would respond.

Sources:

http://www.theroot.com/views/some-hard-questions-elena-kagan

http://trailblazersblog.dallasnews.com/archives/2010/05/cornyn-raises-questions-about.html

http://en.wikipedia.org/wiki/Elena_Kagan

http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-kagan_0530edi.State.Edition1.1157aa5b.html