NEW YORK — Elena Kagan famously derided the Supreme Court confirmation process as a “vapid and hollow charade.”
But according to one of her potential predecessors — and the first woman to sit on the court — there may not be much room for improvement.
Former Supreme Court Justice Sandra Day O’Connor told Need to Know’s Alison Stewart Wednesday that hearings for nominees to the nation’s highest court probably can’t be made less political, as some have suggested, because the Constitution gives the Senate broad authority over the process.
“There are no parameters set for the role of the Senate other than that language,” O’Connor said, in an interview set to air Friday. “The Senate can make of it what it will.”
O’Connor also dismissed complaints by some, including Kagan when she was a Harvard law professor, that the process allows nominees to duck hard questions about their judicial philosophy.
“You can understand the reluctance of a nominee to answer a question that might try to commit them to a position on an issue that is likely to come before them while on the court,” O’Connor said. “People do expect the members of a court, when they hear a case, to approach it without a formal commitment in advance of what they are going to do. So it’s kind of a narrow path for the nominee to walk.”
O’Connor has been focusing on a new initiative to encourage middle students to study civics, which she said has been neglected by public schools. O’Connor attributed that trend to the No Child Left Behind act, which was passed in 2002 and awards federal money to schools whose students perform well in reading, math and science.
“The result of that has been that many schools who are very interested in getting the public help with math and science have stopped teaching government, civics and history,” O’Connor said. “We are neglecting it severely. And at a time when I see a lot of contentiousness at all levels, both federal and state, much debate going on, but students not being prepared to understand or participate. We’re desperately in need of having, in our public school systems, the teaching of civics.”
In the wide-ranging interview, O’Connor also discussed a controversial immigration law in Arizona, her home state, and efforts by conservatives in Texas to correct what they see as a liberal bias in public school textbooks.
She also weighed in on the question of whether family life should be considered in choosing nominees to the Supreme Court. If she is confirmed, Kagan will be the third woman on the court, the most in U.S. history. But only one of those women, Ruth Bader Ginsburg, will have children. Some observers have said the court could benefit from having more women who understand what it’s like to raise a child.
But O’Connor, herself a mother of three, dismissed that view, and said she disagreed with the notion that a judge’s personal life should shape her legal views.
“I don’t think anybody goes on the court and decides cases based on their personal experience, male or female,” O’Connor said. “It probably doesn’t matter as much if they are good mothers or good fathers. We like to have them, but it’s probably not a requirement.”