By Erin Louise Palmer, Professorial Lecturer, American University Washington College of Law
In a 1995 book review, Supreme Court nominee Elena Kagan stated that confirmation hearings are a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." She urged senators to engage in a substantive discussion with Supreme Court nominees. Even though Kagan has retreated from this view, commentators continue to urge senators to "let it be known that they will no longer confirm any Supreme Court nominee who refuses to give substantive answers to relevant questions."
Senators will have the opportunity to engage in substantive discussion with Kagan during her nominations hearings, which are scheduled to begin on June 28, and Republicans have vowed that the constitutionality of health care reform will be a central issue at those hearings. Senators will have the opportunity to frame the debate over the constitutionality of health care reform broadly. As Republican Senator John Barrasso stated on Fox News, "[W]here do states' rights come in, where is the role of the federal government, what can they mandate to the American people, and I'm going to want to hear answers on that." Kagan's answers to these questions will shed light on how she would eventually rule on a case involving the constitutionality of health care reform, as well as the larger issues of states' rights and the role of the federal government.
Commentators generally believe that Kagan would strike down an attack on the constitutionality of health care reform. For example, one commentator analyzed the views of legal scholars across the political spectrum and concluded that Kagan is unlikely to alter the current composition of the Court. As noted by Randy Barnett, a constitutional law professor at Georgetown Law Center who believes there is a valid constitutional challenge to health care reform under the Constitution's commerce clause, "She's as likely to vote to uphold the law as Stevens would have been."