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Image: Kagan
Ryan Kelly  /  Congressional Quarterly via Gett
Elena Kagan testifying last year before the Senate Judiciary Committee on her nomination to be solicitor general.
By Tom Curry National affairs writer
msnbc.com
updated 6/25/2010 11:18:10 AM ET 2010-06-25T15:18:10

Most of the Supreme Court justices whom historians rank as "great" — Oliver Wendell Holmes, Louis Brandeis, John Marshall, Benjamin Cardozo — never went before the Senate Judiciary Committee to answer questions.

Neither the Constitution nor statute requires such testimony.

The first to testify, Harlan Fiske Stone in 1925, only did so to resolve one senator’s complaints about how Stone, while serving as attorney general, had handled an investigation of that same senator.

The nominee at the witness table answering senators’ questions didn’t become routine until the 1950s.

Starting Monday, Elena Kagan’s nomination hearings will reprise this ritual. But the process lacks spontaneity, and that's for good reason. Nominees have been trained, through practice interrogations with White House and Justice Department lawyers, to give cautious, often innocuous answers.

The Associated Press reported this week that Kagan has been undergoing the practices, called "murder boards."

Nominees have learned from Robert Bork, President Ronald Reagan's failed 1987 Supreme Court pick. Bork agreed to do only one such session and helped scuttle his nomination with some of his answers to senators. "It was a mistake not to make him to do more murder boards," rued Tom Korologos, the lobbyist who worked for the Reagan administration in trying to prepare Bork for his hearing.

No way to summon the justice
Despite the high stakes for the nominee — and the risk of getting "Borked" — the interrogators have almost no leverage over the nominee. Senators can't summon a justice, once confirmed, to account for any assurances he or she may have given during the confirmation hearing.

Sparring with chief justice nominee John Roberts during his 2005 hearing, Sen. Charles Schumer, D-N.Y., fumed, “You are being less forthcoming with this committee than just about any other person who has come before us ... This process is getting a little more absurd every time.”

Kagan herself complained in a 1995 law review article that the hearings had taken on “an air of vacuity and farce,” with senators “incapable of either properly evaluating nominees or appropriately educating the public.”

Despite displays of deference to senators by the nominee, it's usually the nominee, and not the senators, who is in control.

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Roberts emphasized to Judiciary Committee members their lack of leverage, telling Schumer that every nominee to high court had resisted “turning this into a bargaining process ... It is not a process under which senators get to say, ‘I want you to rule this way, this way, and this way. And if you tell me you’ll rule this way, this way, and this way, I’ll vote for you.’”

By, in effect, saying “vote against me if you choose, but I won’t give you more detailed answers,” Roberts had a strong hand to play: at that point, there were 55 Republicans in the Senate. Barring a catastrophic blunder, almost unthinkable with the meticulous Roberts, Senate confirmation was nearly certain.

In 'bad taste' to start explaining
In 1939, Felix Frankfurter, one of the first nominees to testify before the Judiciary Committee, told senators that he would not apologize for anything he’d written as a law professor and advisor to President Franklin Roosevelt.

Video: Sotomayor regrets 'wise Latina' comment His views “have been fully expressed over a period of years and are easily accessible.” It would, he said, be in “bad taste” — groveling — to start explaining or amending them.

Frankfurter answered a few questions, notably, “Are you a Communist, or have you ever been one?” Never, he replied.

The most recent justice confirmed, Sonia Sotomayor, did apologize for and explain her comment in a 2001 speech that, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Sotomayor told the Committee last year that her statement was "bad because it left an impression that I believe that life experiences commanded a result in a case. But that's clearly not what I do as a judge.... I do not believe that any ethnic, racial, or gender group has an advantage in sound judgment."

And that explanation smoothed her way to her place on the court.

How Bork's word helped defeat him
Bork was the defining modern nominee.

An appeals court judge and former law professor, he had written voluminously. He testified for five days, explaining views to Senate interrogators.

There was a lot to explain.

Bork had said in 1981 that the Roe v. Wade decision that legalized abortion was “a serious and wholly unjustifiable judicial usurpation of state legislative authority.”

In 1985, he had pooh-poohed the importance of prior court rulings. “I don’t think that in the field of constitutional law precedent is all that important ... If you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it.”

Most Democratic senators, and some Republicans too, found such views anathema.

During the hearings, Bork failed to defend himself against attacks from Sen. Edward Kennedy, D- Mass., that he didn't care about equal rights and that he supported poll taxes and other discriminatory laws.

He came across as chilly and unsympathetic. Asked by Sen Alan Simpson, R- Wyo., why he wanted to be on the high court, Bork replied, "I think it would be an intellectual feast just to be there ..."Committee member Sen. Howell Heflin, D- Ala., told John Bolton, one of Bork's "handlers" from the Justice Department, "He's too professorial."

Bork was defeated, 58 to 42.

Still, Sen. Arlen Specter, one of the six Republican senators who voted against him, found his candor refreshing.  “Robert Bork did an enormous service to the Supreme Court confirmation process and to the country by discussing his judicial philosophy,” he said.

Specter wrote in 2000, “Senators should not have to gamble or guess about as candidate’s philosophy but should be able to judge on the basis of the candidate’s expressed views. In Robert Bork’s case, perhaps more so than any other, the Senate was able to make an informed decision."

Kagan agreed, saying that Bork’s testimony “should serve as a model.”

A model for senators, perhaps, but a formula for self-immolation by a nominee.

In her critique of the confirmation process, Kagan cited President Bill Clinton’s nominee Ruth Bader Ginsburg who made avoiding answers a fine art.

Ginsburg told senators she couldn’t talk about specific cases: “When you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because ... that scenario might come before me.”

But she also wouldn’t opine about general principles.

"I can't answer an abstract issue,” she told the committee. “I work from a specific case based on the record of that case, the briefs that are presented, the parties' presentations, and decide the case in light of that record ... I simply cannot, even in areas that I know very well, answer an issue abstracted from a concrete case.”

But Kagan argued in 1995 that senators ought to press nominees to give their views “on particular issues, involving privacy rights, free speech, race and gender discrimination.” It will be worth watching to see if senators follow Kagan’s advice from 15 years ago, and if her replies are more responsive than Ginsburg’s.

Why elections matter
Whether Kagan chooses Bork-like candor or Ginsburg-style reticence, the hearing is unlikely to change the outcome.

The president’s party controls the Senate and four Republican senators have taken a pledge not to filibuster a Supreme Court nominee except in “extraordinary circumstances,” such as corruption or misconduct by a nominee.

As Sen. Lindsey Graham, R-S.C., told Sotomayor at the start of her confirmation hearing last summer, "Elections matter ... We (Republicans) lost, and President Obama won. And that ought to matter. It does to me."

Since 1930, the minority party in the Senate has never been able to defeat a Supreme Court nominee.

The three voted down in the past 40 years all were nominated by Republican presidents who faced a Democratic-controlled Senate. Another nominee, ethically-tainted Democrat Abe Fortas, picked by a lame duck president Lyndon Johnson, withdrew in face of bipartisan opposition in 1968.

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