Kagan Confirmation Hearings as a “Teaching Moment”

George Mason University law professor Neomi Rao has an op-ed in Tuesday’s WSJ hoping that Elena Kagan’s Supreme Court confirmation will be “an opportunity for a teaching moment about what the court does, how it affects the lives of ordinary citizens, and how individual justices make a difference in this enterprise.”  She continues:

It would certainly be a departure from the unsatisfying confirmation hearings Americans have recently observed. Senators ask important but highly predictable questions, and the nominee is coached to choose from certain stock answers. As we saw in last year’s hearings for Justice Sonia Sotomayor, a nominee must repeatedly allege fidelity to the law. But somehow, despite days of testimony, the process fails to capture what a nominee actually means when he or she describes faithfulness to the law. . . .

Ms. Kagan and those preparing her face a simple, political problem: “progressive” views of judging are difficult to defend. It may be why no recent nominee has tried. The simple statement that “judges should interpret the law, and not make it” resonates with Americans in a way that “judges should figure out the best answer” does not.

The reality may be more complicated than either of these formulas, but an attitude that emphasizes the rule of law has more appeal not merely because of its simplicity but because it captures the idea that judges are not policy makers. It emphasizes that judges should interpret the language of the law and try, as best they can, not to impose their own personal views of justice or the good when deciding cases. . . .

Perhaps this indicates that conservatives have won the debate over the type of judges Americans want. But it is a Pyrrhic victory if nominees with very different philosophies are confirmed based on incantations of the right formulas without an examination of their actual beliefs.