The Kagan questioning was uneventful. She gave a confident and engaging performance–and, of course, one that conveyed no new information. She once regretted that the confirmation process has become so vapid, but when her own came around she wisely conformed.
Mike Kinsley thought it a pity. Emphasising the powers and privileges of the justices, he disapproves of the post-Bork understanding that smart nominees say nothing.
Defenders of this custom predict that any comment that even hints at a specific conclusion on an issue that may come before the Court will inevitably be interpreted as a promise, with hell to pay if it is broken. Dissenters (including me) say, Why should this be? Why can’t it be taken for what it is: a statement of the nominee’s current thinking, with the possibility that…she may change her mind?
Kinsley points out that Kagan has already changed her mind on an important legal issue-whether Supreme Court nominees should be forthright at their confirmation hearings. So she has shown how easy it is to state one’s current thinking without making a promise. And, Kinsley says,
[If] the answer isn’t a promise, then there’s nothing wrong with asking the question.