Kagan once panned 'vapid' hearings

WASHINGTON - The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action, and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she added, even "after his substantive testimony had become a national laughingstock."

These comments from a 1995 article are likely to be a focus of the next Supreme Court hearing if their author - Elena Kagan - emerges as President Obama's nominee.

White House aides say the president is near a decision. With media attention focusing increasingly on Kagan, the U.S. solicitor general, an announcement is expected as soon as Monday. If it is Kagan, her own words are likely to be used against her.

Kagan, 50, former dean of Harvard Law School, has generally avoided taking stands on controversial legal issues. But as a law professor at the University of Chicago, she voiced frustration that nominees for a life-term seat on the court were allowed to "stonewall" the senators and refuse to discuss their "broad judicial philosophy" and their "views on particular constitutional issues."

Kagan insisted it was not enough to focus on whether a nominee is qualified to serve on the Supreme Court. "The critical inquiry ... concerns the votes she would cast, the perspective she would add (or augment) and the direction she would move the institution," she wrote.

Kagan's friends say the article may prove a brief embarrassment if she is nominated, but they expect she can disavow it as the untested views of a young academic.

"I think she would say what every nominee says, that it is improper for a judicial candidate to speak in detail about issues that will come before the court," said Harvard Law professor Carol Steiker, whose friendship with Kagan dates to the year they spent as Supreme Court clerks for Justice Thurgood Marshall.

Kagan declined to comment on the article through a Justice Department spokeswoman.

Last year, when asked about the article in her Senate confirmation hearing, Kagan tried to explain away her tough statements as the brash words of a young Judiciary Committee staffer when it was chaired by then Sen. Joseph R. Biden Jr.

"I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated," she replied, "that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought."