Every now and again, while on vacation, I come up with some half-baked, harebrained idea that--having nothing better to do with my day--I decide to post here. Sometimes they're hits, sometimes not. But part of why I like it here is that I can throw out the occasional kooky notion and get some really intelligent feedback. In that spirit:
The big, non-ideological complaint about Kagan's nomination that her record is too thin for people to get a good sense of her legal philosophy or approaches to many constitutional issues. In short, we really don't know what sort of opinions to expect, because we have little to actually scrutinize.
So here's an idea to supplement the record: moot opinions from nominees.
Let's stick with Kagan as an example. Pretend I'm a Senator who doesn't think there's enough on the record to evaluate her nomination with the rigor it deserves, and I have no reason to suspect that she will be especially forthcoming in her confirmation hearings. A possible step I might take is to ask her to draft an opinion for a case that's already been decided, probably long ago, and where I can be sure she's going to have at least a passing familiarity. So knowing that Kagan once taught Civil Procedure, I can look at her CivPro syllabus, select a case that would be covered every term (say, Erie or International Shoe), and ask her to draft the opinion she would have written--given her present legal understanding and philosophy of the law--had she been on the Court when those cases were heard.
Not only will she be familiar with the facts of the case, and not only will she be addressing questions of settled law that she's doubtless commented upon countless times in the past, but she will be giving insights into her views on how cases should be reasoned and where she might differ from past generations of justices.
Objection!
I've thought of three obvious objections to the idea, but I don't think they're sufficient to justify abandoning it altogether.
1. Rudeness
The first is that it's frankly insulting to the nominee, like administering a driving test to Mario Andretti: as a general rule, modern nominees tend to be highly accomplished and proven legal thinkers, whether they've spent years judging or not. It's also insulting to the President who makes the nomination, suggesting that s/he was selecting incompetent people for what's likely the most important nomination of an administration's run. A healthy respect for co-equal branches suggests that the Senate shouldn't so openly question the nominator's judgment or the nominee's intelligence. But no nominee is entitled to be seated, and no President is entitled to get their nominee through the Senate. Nominees can be rejected because they aren't believed to have the temperament or acumen required (Miers), or because they're believed to adhere to a fringe or extreme philosophy (Bork), or frankly because of whatever reason the Senate deems important enough to base a "no" vote upon. A respect for the Congress's role as a co-equal branch counsels for allowing the Senate to set whatever standards they think appropriate for nominees, and administer whatever questionnaires or examinations they feel necessary to determine if those standards are met.
2. Repetitive
The second objection is that it's often unnecessary to ask nominees to perform tasks like this since they have lengthy judicial or scholarly records to examine. But many judges who've been elevated haven't really had much by way of a record: Clarence Thomas, for example, had been a judge for around eighteen months before he became an Associate Justice, John Roberts served only two years before becoming Chief Justice, and Scalia had only been on the bench for four years before his elevation. Such brief stints, I think, hardly provide enough background for a truly searching inquiry, especially in contrast with a record like the seventeen years that Sotomayor served on the bench before being elevated last year. So the simple solution is to allow the requirement to be waived when warranted in the opinion of the Senators: rather than make this a formal rule, establish it as a de facto one, whereby Senators agree, a la the Gang of Fourteen, to withhold support from noncompliant nominees, thus making it impossible to secure confirmation without satisfying them that the record is substantial enough. Legal scholars who've done extensive work on relevant issues could likewise be waived (for example, if Goodwin Liu were nominated for the High Court, his academic works and his co-authorship of Keeping Faith with the Constitution would probably be sufficient to secure a waiver). Or, in keeping with historical practices that seem to have fallen by the wayside in recent decades, the Chairman and Ranking Member of the Judiciary Committee could provide a list of "pre-waived" names who would be acceptable to both sides. Or perhaps an ABA "well-qualified" ranking could be taken as indicating that a moot opinion would be unnecessary for a particular nominee.
3. Unduly Burdensome
A third objection is that this is a weighty and superfluous burden to add on top of the present process: nominees are already going to be questioned at their hearings, and legal opinions are generally drafted with the aid of a clerical staff and the benefit of briefs from parties and amici. I think the burden argument is thin: a person coming to a long-settled case has not only the benefit of the briefs that were filed back then, but also of opinions from several levels of review, and frequently a large amount of post-opinion scholarship to draw from. And as it's customary now for the administration to provide nominees with a "sherpa" to guide them through the nomination, there's no reason why it couldn't also provide nominees with a law clerk or two to assist with this process (or, more likely, there's nothing keeping a nominee from soliciting the assistance of past clerks, students, or associates to help them with the process, so long as they're the ones signing off on the final product--that's a better approximation of the opinions-drafting process, anyway). And I think we might all be able to agree that the hearings process tends to be far more theater than substance, with little revealed and much obfuscated amidst a flurry of "that might come before the Court at a future date"-esque excuses. With cases that have been long-since settled, however, what's essentially being requested is an advisory opinion on a matter that has really no chance of coming before the Court again.
(One caveat to that last point: it may well turn out that these "nominee opinions" would provide valuable insight for lawyers into what facts and issues the new justice would consider pertinent and worth revisiting, giving a strong signal to the legal community about what direction the Court might be heading in as a result of the appointment. That has both benefits and drawbacks, though I think on the whole it's a net gain--I could easily be persuaded otherwise, though.)
I'm certainly not wedded to the idea of having nominees draft moot opinions, but I think it might have some merit. This is just a thin thread of a crazy idea for reforming the confirmation process. I'd really appreciate any thoughts--especially harshly negative and critical ones--that you might have to offer in the comments.