We're guessing President Obama didn't mean to undermine his Supreme Court nominee when he introduced her this week. So maybe it was a slip of the tongue when Mr. Obama noted that as Solicitor General her "passion for the law" had led her make this year's landmark campaign finance case, Citizens United v. FEC, her first argument before the Supreme Court.And, of course, Kagan herself has argued that nominees to the bench should answer such questions.
"Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case," Mr. Obama said, Elena Kagan took it on bravely. "I think it says a great deal about her commitment to protect our fundamental rights," he continued, "because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
Whoa there, big fella. Are you saying that your Solicitor General chose to make Citizen's United a priority out of personal conviction? That's certainly what it sounds like.
But isn't the SG supposed to argue the government's position despite her personal views? And isn't that why Ms. Kagan has said she can't offer any substantive legal views during confirmation hearings? During her SG hearing last year, Ms. Kagan repeatedly hid her personal jurisprudence by claiming she would argue the government's position whatever her own views.
Mr. Obama's break from this confirmation omerta was no doubt a calculation that opposing Citizen's United is a political winner, both for Ms. Kagan in her hearings and for Democrats in the fall. This is an issue he wants to fight about, and he talks about it every chance he gets.
But by volunteering his nominee's personal opinion on free speech and campaign finance law, the President has created a double standard on his nominee's confirmation candor. If Mr. Obama wants Americans to know what Ms. Kagan thinks about campaign finance, then why shouldn't we also know about her legal passion on abortion, or the Commerce Clause, or whether U.S. citizens arrested on U.S. soil can be declared enemy combatants? Surely Senators don't have a right to know what Ms. Kagan believes only on matters of law in which her views score well in opinion polls.
Such forthrightness would also be consistent with Ms. Kagan's own long-held view that Senators have a duty to probe legal philosophy. In a 1995 book review for the Chicago Law Review, she wrote, "When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."Well, of course they can. It's their Senate, after all.
As a nominee, she would now prefer to coast through a Democratic Senate as the ultimate stealth candidate. She and Mr. Obama can't have it both ways.