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Kent Garber
In a book review she wrote in 1995, Elena Kagan, then an assistant professor of law at the
As Kagan concluded, for subsequent nominees "the safest and surest route to
the prize lay in alternating platitudinous statements and judicious silence. Who would have done anything different, in the absence of
pressure from members of
It is a fascinating question that now looms over Kagan herself, the current U.S. solicitor general who was nominated by President Obama to fill the vacancy on the high court created by the retirement of Associate Justice John Paul Stevens. Yet so far, she has done little to indicate that she intends to diverge from the tight-lipped practices of recent predecessors.
Kagan made her first rounds on
As Kagan noted in her 1995 review, the
Which is not to say that she is a conventional pick. She has never been a judge, which sets her apart from the current members of the court (the last non-judges seated were William Rehnquist and Lewis Powell, both in 1972). One consequence is that she has accumulated a short paper trail, and what she has written tends to be rather theoretical.
One paper that will surely garner attention, though, was published in 2001, shortly after she left the Clinton White House, in
which she reflects on how the Clinton administration managed to increase its power over government agencies by requiring more
In recent years, these hearings have been increasingly marked by what Kagan once decried as a "dearth of substantive comment," with nominees declining both to talk about specific cases, out of concern that such a case might come before them, or to address questions about their general judicial philosophy, saying that they would need to see the specifics of a case.
If Kagan were to
follow the advice she laid out earlier, she would likely provide the
Available at Amazon.com:
What Is Happening to News: The Information Explosion and the Crisis in Journalism
The Virtues of Mendacity: On Lying in Politics
Bush on the Home Front: Domestic Policy Triumphs and Setbacks
The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House
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Elena Kagan's Short Paper Trail May Aid Supreme Court Bid