March 05, 2009

Kagan Continues to Avoid Answering Nomination Questions

Ed Whelan at Bench Memos has closely followed Kagan's non-responses to many of her nomination questions. (see here here and here)

Today Ed follows up on her continued refusal to adequately answer questions related to her nomination despite Arlen Spector's letter to her expressing his dissatisfaction with her n0n-responses.  
In a letter response, Kagan has stiffed Specter’s request.  She asserts that “some questions … cannot be answered consistently with the responsible performance” of the Solicitor General position and repeats the arguments that I rebutted in my Part 2 post. (She seems to have abandoned the ones I addressed in my Part 1 post.) 


Kagan also states that in providing her non-responses she “was cognizant of the way other nominees to the position of Solicitor General have replied to inquiries from senators”.  She provides two examples, neither of which provides meaningful support for her position.  First, she quotes a snippet of an answer from Paul Clement, but fails to point out the remaining eight sentences in Clement’s answer that provide a meaningful response to the question.  Second, she quotes a statement by Seth Waxman that it is the “established practice of the Solicitor General not to express views or to take positions in advance of presentation of a concrete case.”  But Kagan is not the Solicitor General (nor, of course, was Waxman if and when he used this sleight of tongue to evade answering a question).  She’s the nominee, and she has (to borrow from her own letter) “a responsibility to address senatorial inquiries as fully and candidly as possible.”  She’s plainly not doing that. (emphasis added)

Kagan's name has been bandied about as a possible SCOTUS nominee.  She has received conservative praise for her time as the Dean of Harvard Law School and she has been careful not to comment on hot button issues such as abortion or the War on Terror.  I can only presume that her continued reticence to commit an answer in this case is related, at least tangentially, to her past stance in not going on the record with her views on these issues.  Avoiding these issues would certainly help a potential SCOTUS nomination process.  Is that playing into her calculation?

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