If you’ve been paying any attention to the news surrounding Elena Kagan’s possible confirmation to the Supreme Court, then you’re probably familiar with the “vapid and hollow charade” quote from “Confirmation Messes, Old and New,” Kagan’s essay for the University of Chicago Law Review commenting on SCOTUS confirmation hearings and questions asked of nominees to the Court. Here’s another quote you don’t see making the media rounds as much:

[F]ocusing the confirmation process on moral character (even in conjunction with legal ability) would prove a terrible error. For one thing, such a focus would aggravate, rather than ease, the meanness that Carter rightly sees as marring the confirmation process (and, one might add, much of our politics). The “second” hearing on Clarence Thomas ought to have taught at least that lesson. When the subject is personal character, rather than legal principle, the probability, on all sides, of using gutter tactics exponentially increases. There are natural limits on the extent to which debate over legal positions can become vicious, hurtful, or sordid–but few on the extent to which discussion of personal conduct can descend to this level.

This passage sticks out to me because I think the confirmation process is a bunch of bullshit posing as righteous fact-finding. Yes, the Senate Judiciary Committee has a duty to fully vet any nominee to the Supreme Court as it is one of the most important positions in our government with enormous responsibility and influence. Nominees should be questioned on issues relating to their knowledge of the law and whether they’re able to make decisions based on the merits of a case, not their personal views and beliefs.  Let me clarify: It’s not that one’s morals and personal values do not matter at all, they do. I’d say that if your values led you to believe that Black people were inherently inferior (*side eye*  Stephanie Grace), well then I wouldn’t want you near the Court. My point here is that too often, simply having any discoverable opinion at all that comes down on one side of the fence and not the other is held up as reason NOT to confirm. I think that’s unfair for two reasons:  1) the concern about a nominee’s beliefs is superficial and only matters insofar as it is a benefit or detriment to your side. And 2) some can separate the personal from the professional, particularly when it comes to law and the Constitution.

Number one, I can’t comment on how confirmation hearings used to go down back in the day, but recently when it comes to picking a justice, it seems like the concern is more “be on my side” than “take no sides at all.” Folks on the “right” think Kagan is too liberal so they’re going to do what they can to make her confirmation an uphill battle and they’ll say it’s because a justice should be fair and impartial. They’re right, a justice should be those things, but they suck because if Kagan were more right-leaning, then they’d love her and wouldn’t be too concerned with her not being impartial. Same goes for the “left” who is all behind her until they find out she may not be as liberal as they’d hoped. Then it’s time to trot out all your quotes and ideas about how a justice shouldn’t allow his/her personal feelings to color his/her judgment. They hypocrisy is frustrating as hell.

On to point two, there’s something I observed in law school: There are some people who really love the law. They love it because it is simple and because it is complex. They love it because, on paper, it is just and logical. There are people who love the law so much for what it is and what it aspires to be, that they will do anything to uphold the rule of law to the letter. That is why a father with young daughters can defend a confessed child-molester in criminal court. That is why there are lawyers who will defend men like Khalid Sheikh Mohammed, soon to be on trial for the tragedies of 9/11. People like that, who can put aside their own feelings and emotions to let the law work it out, should be the judges and justices in our country.

That is why we ought not be so overly concerned with whether a potential SCOTUS justice donates to PETA or demonstrated against the death penalty in college, whether he/she sleeps with men/women/other, or whether that person has EVER expressed an opinion about ANYTHING.

Many of the people I know who went to law school did so because they’re passionate about something. They’ve been involved their whole lives, sometimes taking hard stances on polarizing issues. They’ve volunteered for and spearheaded campaigns and they’ve been vocal about it all. This is especially true of folks who go into the kind of public service practice you’ll find in the resumes of the country’s most accomplished judges.  It seems crazy to me, then, that we ask potential justices to be devoid of any opinion, any passions and any values. They should have them and be able to vocalize them before they ascend to the bench, so long as they can separate them from their work. I know it sounds difficult to do, but like I said before, I’ve met these people. If Elena Kagan is one of those people, and that’s what the confirmation hearings should be trying to discover, then she ought to be on the Supreme Court (barring any other grounds for denial). She made a pretty good point back in ’95 – the hearings are pretty vapid and hollow. We can’t ask nominees to be everything to everyone while at the same time being no one at all. It’s politics where politics shouldn’t exist and frankly, I’m just a bit tired of it all.

I’d also like to take this opportunity to plug 3muchapparel, a company run by my cool law school colleagues. Get their updated SCOTUS tee and show how big of a law nerd you are. I have the throwback version with Stevens, sans Kagan (of course) but if you want to be ahead of the pack, grab one. Loving the color too.