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Senate should accept Kagan's '95 'challenge'

By Julian Zelizer, Special to CNN
  • In '95, Elena Kagan complained that Supreme Court hearings avoid substantive issues
  • She said hearings should focus on Constitution, court's role and nominees' views
  • Zelizer: Many distinguished Supreme Court justices hadn't served as judges
  • It's a mistake to judge nominee by undergraduate work, says author

Editor's note: Julian E. Zelizer is a professor of history and public affairs at Princeton University's Woodrow Wilson School. His new book is "Arsenal of Democracy: The Politics of National Security: From World War II to the War on Terrorism," published by Basic Books. Zelizer writes widely about current events.

(CNN) -- In 1995, Elena Kagan published a lengthy book review in the University of Chicago Law Review, titled "Confirmation Messes, Old and New," in which she was critical of the confirmation process for Supreme Court nominees.

While she challenged the author Stephen Carter's argument that the confirmations had become nasty and destructive, she instead complained that the hearings tended to avoid substantive issues.

Kagan argues that in response to the contentious debate over Robert Bork in 1987, senators refrained from dealing with real issues. Rather than offering a serious examination of how a nominee viewed constitutional issues, the hearings instead provided a "vapid and hollow charade" devoid of substance.

She urged a return to the kind of debate that surrounded Bork, which she said "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominees."

Based on the initial media and political response to her nomination, it seems that Kagan was spot on. During the first week since President Obama announced his selection, public discussion has revolved around irrelevant issues that won't teach us much about Kagan.

The first question that has been raised has to do with judicial experience.

Some Republican critics have suggested that during the hearings, they will focus on whether she is qualified to serve on the Supreme Court given that she doesn't have judicial experience.

Republican Sen. Jim DeMint of South Carolina expressed concern "that she has no judicial experience to give Americans confidence that she will be impartial in her decisions."

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The question ignores the fact that the country has a very long record of distinguished Supreme Court justices who had not served as judges.

The argument that nominees should have judicial experience is relatively new in American history. Just some of the names on the list of accomplished Supreme Court justices who had not served as judges include John Marshall, Louis Brandeis, Felix Frankfurter, and William Rehnquist.

The second question that has emerged has to do with the senior thesis here at Princeton University. (Full disclosure: I was not at Princeton while she was a student here and have never met the nominee.)

The thesis examined the failures of socialist politics in New York in the decades leading up to the New Deal. It is a study, she wrote, about how "Radicals have often succumbed to the devastating bane of sectarianism."

The thesis examines how New York socialists became politically ineffective and marginal during this time as a result of internal political and doctrinal disputes.

Some commentators have pointed to the thesis as evidence that she was sympathetic to socialism.

It seems that in some circles, the Cold War never ended. Blogging for the Weekly Standard, commentator Michael Goldfarb wrote that the thesis, and the dedication to her brother, reveal the "radical roots of the nation's top lawyer."

Glenn Beck charged that Kagan was "endorsing socialism" with her work.

To rely on undergraduate work to make judgments about a nominee is a mistake.

During these important years, the best students explore different ideas and try to understand alternative perspectives as they shape their own intellectual future. We would hope that as undergraduates, students demonstrate the capacity to examine a wide range of ideas rather than limiting themselves to their own particular positions.This is especially important for students who go into the law.

More importantly, senators must realize that, as my colleague Professor Sean Wilentz (her undergraduate adviser) said, "Because you study something does not mean you endorse that thing."

Understanding the failure of left-wing politics in the United States that culminated with the New Deal -- when American politics adhered to beliefs in property rights and individualism even while expanding the federal government, in contrast to many European countries -- has been one of the major political questions that historians and political scientists have examined.

The work builds off the scholarship of respected intellectuals from the 1950s, like Daniel Bell and Seymour Martin Lipset, who devoted their work to Werner Sombart's question of "Why is there no Socialism in the United States."

Finally, and most embarrassing to the media, are the whispering campaigns that have surfaced about her personal life.

This is an issue that has nothing to do with her confirmation. It is simply another step in the unfortunate convergence of National Enquirer journalism and serious news journalism that we have seen in recent decades.

Senators, and consumers of news, should push back against the media and make it clear that these kinds of stories have no place in confirmation discussions.

If senators want to get it right, they should read Kagan's 1995 article and take her up on her challenge.

The Senate Judiciary Committee should question the nominee about her understanding of constitutional questions and try to glean where she might take the court in the coming decades.

Liberals have raised some serious questions about her views of executive power and capital punishment, while conservatives have speculated about where she might come down on issues concerning federal-state relations and the first amendment.

Unfortunately, these kinds of discussions are often drowned out by the issues that have no relevance to the decision at hand.

Maybe after reading Kagan's record, the Senate can elevate rather than denigrate the public discourse and demonstrate how Congress can fulfill its functions.

The opinions expressed in this commentary are solely those of Julian E. Zelizer.