Sen. Arlen Specter (D-Pa.), a perennial wildcard in Supreme Court confirmation hearings, cut short a line of questioning to nominee Elena Kagan today after he said she was not giving him substantive answers.
Specter warned that he was struggling to find a reason not to vote against her.
“You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further.”
The senator and the nominee were sparring over a relatively obscure area of the law — a standard the Court uses in reviewing the constitutionality of legislation. Justice Anthony Kennedy wrote for a majority in a 1997 case, City of Boerne v. Flores, holding that legislation involving constitutional rights had to show “congruence and proportionality” with the rights protected, a stricter test than the previous “rational basis” standard.
Kagan declined to say whether she agrees with Kennedy’s standard. “I can’t sit at this table without briefing, without argument, without discussion with my colleagues, and say, ‘Well, I don’t approve of that test. I would reverse it,’” she said.
“Perhaps you haven’t answered much of anything,” Specter retorted. “Why do you have to read briefs on a standard? This is not a specific case. This is a standard as to whether the rational basis is sufficient or as to whether you need congruence and proportionality.”
But Kagan, who in a 1995 law review article famously called for nominees to discuss substance, defended her decision not to comment.
“You shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues,” she said.
Speaking to reporters afterward, Specter again declined to say how he plans to vote. “There’s a calculation, on the part of the nominee and her advisers, that this is the way to testify, that this is the way to help themselves,” he said. “Whether they’re right or wrong comes out in the wash.”