SG Nominee Kagan Stiffs Specter

SG Nominee Kagan Stiffs Specter, by Ed Whelan
Bench Memos/NRO, Mar 04, 2009

After Solicitor General nominee Elena Kagan inadequately answered the written questions submitted by Republican senators on the Judiciary Committee (see my posts “Elena Kagan’s ‘Vacuity and Farce’”—Parts 1, 2 and 3), ranking committee Republican Arlen Specter sent Kagan a letter expressing his dissatisfaction with her many non-responses and stating that they were “inadequate for confirmation purposes”. Specter asked that Kagan provide real 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.

In light of Specter’s recognition that Kagan’s answers are “inadequate for confirmation purposes”, Specter’s sole option is to vote against Kagan, and other Republicans should follow his lead.