Elena Kagan Confirmation Hearings Should Focus on Constitutional Issues, Not Scoring Political Points

The Senate is scheduled to begin confirmation hearings this week for Solicitor General Elena Kagan, who has been nominated by President Obama to fill the vacancy in the Supreme Court created by the impending retirement of Justice John Paul Stevens. Filling vacancies to the Supreme Court is one of the most influential acts a President can take, and the duty of the Senate to accept or reject their nominations is not something that should be taken lightly.

Unfortunately, if the present evidence is any indication, the members of the Senate Judiciary Committee are more likely going to focus on scoring political points and making headlines for themselves than properly investigating Ms. Kagan's genuine fitness for the position. So far, the statements by Republicans seem fixated only her actions related to military recruiters when she was dean of the Harvard School of Law, as opposed to any of her positions on constitutional issues.

The questions the Senators should be prepared to ask in these hearings should focus on Ms. Kagan's positions regarding such matters as the separation of church and state, federalism, the extent of executive power, the extent to which the 4th Amendment protects the privacy of citizens, whether or not the First Amendment covers campaign donations in addition to speech and writings, and so forth.

Sadly, we're likelyto see little or none of this. What we are likely to see is the Democratic half of the committee telling her how great she is and defending her from Republican attacks, while the Republican half of the committee dig up meritless criticisms for the sake of the television cameras, being intent more on embarrasing President Obama than doing the job they were sent to Washington to do. If there is going to be an exception to this otherwise dismal rule, it will probably be Senator Lindsey Graham (R-SC), who often is the sole member of the Judiciary Committee who seems intent on actually doing his job rather than toeing the party line.

For all I know, Ms. Kagan could turn out to be an outstanding Supreme Court justice. But if the recent past is any indication, her confirmation hearings are going to be nothing more than a session of partisan bickering and a demonstration of everything that is currently wrong with representative goverment in America.