How Candid Was Kagan? Depends Who’s Asking, Analysts Say

BY Hari Sreenivasan  July 8, 2010 at 2:29 PM EST

To Sen. Patrick Leahy, Solicitor General Elena Kagan was “more forthcoming than certainly any nominee that I can recall since I’ve been in the Senate.”

But to Sen. Arlen Specter, she was far less candid: “You have followed the pattern which has been in vogue since Bork,” he told the supreme court nominee.

Overall, Kagan was about as candid as recent nominees and she received about as many questions, according to political science professors Dion Farganis and Justin Wedeking in a just-published study of the Supreme Court nominee’s hearings. Here’s how often (as a percent of questions asked) she was “very forthcoming” with each senator:

Her 680 exchanges (basically, a question and answer, or possibly some banter back and forth), was slightly higher than Sonia Sotomayor (546) and just lower than George W. Bush’s nominees, John Roberts (717) and Samuel Alito (781).

After the jump, we check in with to the two professors about their Kagan analysis, and what might make the hearings better.

You write that Kagan was about on par with recent nominees: She got a similar number of questions and was about as candid. Is this just the way Supreme Court confirmation hearings are going to be for the foreseeable future?

Dion Farganis, Elon University: It certainly seems that the hearings have found their groove, so to speak. The fact that the number of questions, the type of questions, and the candor level have all remained very stable over the past several hearings certainly suggests that what we saw last week is likely to be repeated the next go-around. Taking an even longer view, nominee candor has held fairly steady for more than a half-century. So it’s unlikely, based on what we’ve seen up to this point, that things would change too much in the future. But it’s always important to remember that under different political conditions, or with a very controversial nominee, things could change — and we could get a “new normal.”

Justin Wedeking, University of Kentucky: For the most part, yes, this is how hearings will be for the foreseeable future. We are starting to see some indicators of a routine developing that were not present in the earlier hearings. For example, for the past 25 years, the percentage of questions coming from opposing party senators has been consistently in the 50-60% range. A few other things to consider:

Some of this “routinization” can be attributed to what we call “selection effects,” due to the fact that nomination hearings were highly salient in the past. Presidents are now guaranteed that nominees will be heavily scrutinized at the hearings, regardless of who is nominated. Presidents want to avoid something embarrassing from surfacing during these hearings (or have it lead to an unfavorable Senate vote). Knowing this, presidents are more likely to select a nominee that has been thoroughly vetted and less likely to have any “skeletons” in the closet. Thus, “selection effects” can contribute to a more “normalized” hearing process by influencing who ultimately gets nominated. Consistent with this, Harriet Miers withdrew her nomination before the hearings, likely because it would have been much different than say the recent four hearings (Roberts, Alito, Sotomayo, and Kagan) because of the gap in perceived qualifications.

One factor that may lead to a particular hearing “heating up,” is Divided vs. Unified Government. For the last six hearings, we have had unified government. If the president nominates someone agreeable to senators of his party, then the president can usually expect a relatively “normal” hearing. Senators from the opposing party generally know they have little leverage during the hearings if they are in the minority party, their only real option is to keep asking probing questions about the nominee’s views in hopes to get them to stumble. In sum, divided government would likely lead to a hearing that will deviate from the routine.

With recent nominees learning from earlier hearings, it is likely that nominees believe these hearings will do little to “win” votes, with their answers more likely to “lose” votes if they “trip-up” or “stumble.” Knowing this, and based on what we’ve seen in our study, nominees are increasingly likely to offer the reason of “the issue will be before the Court” as an excuse for being evasive. This is usually acceptable to most senators, as evidenced by several of the senators not pressing on when Kagan gave this as a reason for not answering questions.

What would make these hearings more productive for nominees, senators and those of us watching and trying to understand the process?

DF: For nominees, I suspect they would just as soon not have to answer anything beyond basic questions of biography and qualifications. Questions about substantive issues are like land mines.

In terms of senators, they probably know the hearings would be more productive if they were held behind closed doors. But given how much of a platform the hearings provide, it’s unlikely any senator would want to shut out the cameras. Also, I think there are some senators who believe that the hearings would be more productive if the committee as a whole agreed to vote against nominees who did not answer all of its questions. But again, that’s unlikely — if only because at least some of them recognize that nominees do have legitimate constraints on what they can talk about in terms of unsettled issues.

As for the public, there’s no doubt that knowing one’s way around constitutional law really helps appreciate the hearings — or at least makes it easier to tell when the nominee is dodging questions. But anyone can easily keep an eye out for discussions of past Supreme Court rulings. Those are the places where the nominees and the senators seem to butt heads quite a bit.

JW: I’ve seen some major changes discussed as well: make the hearings private or confidential (exclude media and public), or even do away with them altogether. I’ve also heard some suggestions that nominees be held accountable for things they say if they behave inconsistently once getting on the bench, but might be difficult and costly for senators to enforce. On the other hand, one could argue this relatively “normalized” process is a healthy sign for our democratic government and system of checks-and-balances when there are no major controversies.

For those watching, I would emphasize two basic points to consider: First, a basic principle of our justice system is that our cases will not be prejudged. Americans should ask themselves if they want to take a case before a judge who has already expressed an opinion on it? The answer, I suspect, is that the vast majority of Americans would not want this. Given this, we have to understand that nominees (whether it’s Kagan, Sotomayor, Alito, or Roberts) should not answer every single question because it will essentially disqualify them from hearing that case, or one similar to it, once on the court. If a recusal happens, this may leave the court split 4-4, with any decision then lacking the force of precedent and failing to resolve conflict in the lower courts.

Second, observe the questions that nominees do answer candidly. For example, there were several examples from Kagan’s hearing where she told us bits about her political and ideological background that spoke to her philosophy: she said she was proud of her work in two Democratic administrations, that she had a progressive philosophy, and that she clerked for Justice Thurgood Marshall. All of those things point to her having a liberal-leaning philosophy. Now, that does not mean she will be liberal on every single case or issue that comes before the court, but it is an excellent cue for distilling her general ideological beliefs.

Kagan didn’t treat all senators equally, you write. She was forthcoming with some and held back with others. What made the difference? Did any senator get her to say more than she might have meant to?

DF: In terms of what made the difference, we still have some work to do to sort all that out. At this point, I think we feel confident saying that the kinds of questions that different senators asked probably made a big difference in how Kagan responded. Leahy’s questions, for example, were mostly basic inquiries about judicial philosophy. Specter, by contrast, wanted to know how Kagan would approach specific issues, and he didn’t let up when she spoke in generalities. So, the differences in the questioning probably accounts for most of the differences in candor.

JW: To build on Dion’s point, the type of question matters. The data show that if it was a question ascertaining Kagan’s viewpoint, she was less forthcoming. If it was a factual question, she was more fully forthcoming. For example, approximately 60% of Senator Leahy’s questions were of a factual nature, this helps explain why she was 100% candid with him. On the opposite end, 0 percent of Senator Specter’s questions were factually based, they were all on her views. This helps explain why Kagan only gave fully forthcoming answers approximately 32 percent of the time.

DF: As for whether any senator got Kagan to say too much, it’s of course impossible to know for sure. Having said that, I was a bit surprised by Sen. Graham’s ability to get Kagan to characterize her politics as “progressive.” Graham has a gift for being disarming, so once again, the explanation for the difference in candor may be tied to the senator who asked the question.

JW: I don’t think there were any major bombshells dropped at the hearings, though I was slightly surprised to hear Kagan so readily admit to Senator Leahy that the two recent decisions on gun rights were “binding precedent in… any case.” That is where I would have expected some qualification, depending on the facts of the next gun right case that approaches the Supreme Court.