Megyn Kelly adds to the myth of the Kagan standard

Blog ››› ››› OLIVER WILLIS

On today's edition of Fox News' America Live, Megyn Kelly opined that because of a 15 year old book review she wrote, "it would be really hard" for Elena Kagan to refuse to answer questions at her Supreme Court confirmation hearings:

But there is clear precedent for prospective justices to avoid opining on issues that may appear before the court. When they were nominated, both Samuel Alito and John Roberts refused to answer questions - at least 50 times for Roberts according to the NY Times. At the time of the Roberts hearings, Republican senators like Orrin Hatch (UT), John Cornyn (TX), Jon Kyl (AZ), and Charles Grassley (IA) indicated that it would be improper in their view for Roberts to answer questions on issues that may come up before the court.

On PBS' NewsHour, Sen. Cornyn said:

But I submit that particularly in courts of law, no one -- no one is entitled to know ahead of time what the outcome will be because the very premise of our judicial process is that courts are supposed to be fair and listen to both sides, or all sides of an argument. The judges are supposed to be disinterested in the outcome, and impartial, and that judges finally be independent of the political process. So no one is entitled to know what Judge Roberts -- how Judge Roberts will rule on these hot-button issues of the day. No one is.

In the Roberts hearings, Sen. Hatch said:

Some have said that nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment. These might be catchy sound bites, but they are patently false.

That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to senators and protect their impartiality and independence. Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. Some senators consult with law professors to ask these questions a dozen different ways. But we all know that is what they seek.

In his opening remarks for the Roberts hearings, Sen. Grassley said:

Moreover, I'm hoping that we won't see a badgering of the nominee about how he'll rule on specific cases and possible issues that will or may come before the Supreme Court. That has been the practice, as you know, in the past.

Before the vote for Roberts, Sen. Kyl said (via Nexis):

In my opening remarks, I told John Roberts that I would defend his position in complying with the canons of judicial ethics, and the traditions of the committee not to testify in ways that could signal how he might rule on a matter that was likely to come before the court. That is the proper standard, he adhered to that standard, and I defend his right to do so.

So, on one side there is the pattern set by previous Supreme Court nominations, as well as the view of four Republican senators during previous nominations. On the other side is a fifteen year old book review and Megyn Kelly creating a new standard.

Supreme Court Nominations, Elena Kagan
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