Elena Kagan wrote 15 years ago that Supreme Court confirmation hearings had become a "vapid and hollow charade" filled with blather instead of rigorous thought. For a lifetime appointment, she argued, there should be a substantial exchange of ideas.
When her own turn before the Senate Judiciary Committee begins Monday, however, Kagan probably will stick to platitudes.
Since Judge Robert Bork's blunt lectures on his views of constitutional law sank his nomination in 1987, would-be justices and the administrations that pick them have mastered the art of the bland. Nominees, even those with a trail of opinions on lower courts, tell senators they can't comment on matters that may come before them, portraying themselves as automatons who mechanically apply the facts of each case to settled law.
Sen. Arlen Specter (D., Pa.) plans to try to get Kagan to live up to the vision of hearings she sketched in that long-ago Chicago Law Review article.
"I think it's fair game for us to insist on her sticking to it," Specter, a member of the Judiciary Committee, said in an interview. "We can't put her in thumbscrews, but we can press."
Kagan, 50, seems in many ways a perfect nominee for the post-Bork era. She was most recently President Obama's solicitor general, the lawyer who argues the government's positions before the Supreme Court, and before that she was the dean of Harvard Law School, a professor, and a mid-level policy adviser in the Clinton administration. At the beginning of her career, Kagan was a clerk to Supreme Court Justice Thurgood Marshall.
She has never been a judge, so there are no hot-button rulings to explain away, and legal analysts say that most of her scholarly writings - Kagan has not published since 2001 - are measured and technical.
"There are loads and loads of documents to chew over, but there's not a lot there," said Sen. Ted Kaufman (D., Del.), also a Judiciary member, who has been involved in 12 confirmation battles - 10 of them as an aide to Vice President Biden when the latter was in the Senate and a key figure on the committee.
"My Republican colleagues seem to be bouncing from issue to issue, without any single one catching," Kaufman said. "With [Kagan], what you see is what you get. There's no systemic 'way out there' thinking."
Senators and their aides have been poring over 160,000 pages of documents, including 77,000 e-mails from Kagan's time in the Clinton White House. So far, there has been no bombshell, though Republicans have pointed to instances in which Kagan advocated liberal policies and to signs they say indicate she may be an "activist" judge.
"The more we learn about Ms. Kagan's work as a political adviser and political operative, the more questions arise about her ability to make the necessary transition from politics to neutral arbiter," Senate Minority Leader Mitch McConnell (R., Ky.) said Wednesday.
Still, most Republicans expect her to be confirmed. With the oil spill in the Gulf of Mexico and, more recently, the sacking of Gen. Stanley McChrystal dominating news coverage, it seems many people have forgotten there is even a pending nomination.
Kagan's hearings come at a time of flux for the closely divided court. Under Chief Justice John G. Roberts Jr., the law has inched to the right, and the justice whom Kagan would succeed, John Paul Stevens, 90, has been the leader of the liberal bloc resisting that movement.
Moreover, broad constitutional questions about the proper role of the federal government have propelled much of the recent political debate, from Arizona's anti-illegal-immigrant law, to arguments from tea-party activists that the health-care overhaul is unconstitutional overreaching by the government, to Obama's recent insistence that BP establish a $20 billion fund to compensate oil-spill victims.
Critics on the right pointed to Kagan's advice to Clinton on a bill to prohibit a form of late-term abortion that opponents call "partial birth"; in favor of a ban on soft-money political contributions, which she wrote would hurt Republicans more than Democrats; and in favor of sharp restrictions on gun ownership.
"It's very clear that Elena Kagan is a capable person . . . but her politicized path to the nomination raises great concern about how she'd behave as a judge," Notre Dame law professor Gerard Bradley said last week on a conference call for reporters arranged by Americans United for Life, a conservative antiabortion group. "It is essential in her case that senators require her to answer tough questions not only about where constitutional law is now, but whether she thinks constitutional law is defective on abortion, gay marriage, and church/state issues, to name three."
Civil libertarians said they were concerned that in her confirmation hearings last year for solicitor general, Kagan said it made sense to her that the president had the authority to detain "enemy combatants" in the antiterrorism effort without trial.
Robert Bauer, Obama's White House counsel, said that Kagan would give "illuminating" testimony to the Judiciary Committee, but "without tripping the traditional wires about things she may deliberate on" as a justice.
Democrats in the Senate say they hope to extract clues as to how Kagan would approach the court's January ruling in Citizens United v. Federal Election Commission that wiped out 100 years of precedents against corporate money in campaigns. As solicitor general, she argued what turned out to be the losing side in the case.
Kaufman said he wanted to question Kagan about the court's recent favoring of the rights of corporations over individuals and consumers, embodied by the Citizens United decision, as well as rulings that weakened some antitrust protections.
"I decided a long time ago that asking 'gotcha' questions was fruitless," Kaufman said. "The idea that you're going to expose some logical flaw or problem with a nominee is not realistic, but you can get a general feeling of what they think is the proper role of the court."
Specter, who voted against confirming Kagan as solicitor general because he thought she was too vague in her answers, wants to know whether she would give deference to congressional findings of fact, such as those that underlie the long-standing ban on corporate money in campaigns.
He said he also would push her to encourage the court to hear more cases. Justices, who in recent years have heard only about 70 cases a term, have let conflicting rulings by different appeals courts stand on important issues without clarification, Specter said.
In addition, the court has evaded adjudicating important issues, such as whether it is constitutional for the government to wiretap conversations in potential terrorism cases without getting a warrant, as Congress has required.
"In the history of the court, there's never been a sharper clash" between executive and legislative prerogatives, Specter said.
Neither he nor Kaufman is discounting the possibility of getting some answers from Kagan.
"It's live theater," Kaufman said. "Anything can happen."
Here is what to expect as the Senate Judiciary Committee convenes its confirmation hearings for Supreme Court nominee Elena Kagan. The hearings are expected to last much of the week, and will be widely covered live on television and online.
Massachusetts Sens. John Kerry (D.) and Scott Brown (R.) will introduce the nominee, who served as dean of Harvard Law School in their state. Kagan will then take the oath and deliver an opening statement.
Wednesday and beyond