Elena Kagan’s confirmation hearings are underway in the Senate Judiciary Committee, a rite of passage for Supreme Court nominees. Right? Not so fast. There’s actually no constitutional or legal requirement that nominees to the Supreme Court testify before the Senate.

The Constitution merely states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.” The first confirmation hearings were held in 1925, a voluntary gesture by President Coolidge’s nominee, attorney Harlan Fiske Stone. Before then, nominees were often confirmed quickly, as quickly as the same day in the case of President Harding’s nominee in 1922, Sen. George Sutherland of Utah.

History and the debates of our Founders offer some sound reasons why any vetting of court nominees should become more limited and less political. Senators should consider nominees for their general fitness for the court, not pressure them for ideological confessions.

Last week, nearly 11,000 of Kagan’s e-mails were made public as part of an unprecedented release of nominee records, and for months both parties have been scouring her past to get ready for this week’s hearings. Still, no real surprises are expected. Republican senators want to corner Kagan as a liberal wishing to make law from the bench, while Democratic senators will portray Kagan as a consensus builder and an “empathic” counterweight to the conservative block on the court. Still, the show must go on.

Elena Kagan is the first nominee since William Rehnquist, nominated in 1971, who has never served as a judge. The resulting lack of judicial opinions by Kagan makes it even more difficult for those trying to ascertain her ideology, so there are calls for Kagan to answer questions about her opinions on issues likely to come before the court. The Founding Fathers did not think this wise.

In his Virginia Plan, the basis for debates at the Constitutional Convention of 1787, James Madison proposed that Congress be given the power to write laws, but that then a joint “council of revision,” made up from the executive and the judicial branches, be allowed to review the laws. Many delegates supported the idea out of fear that without the support of the judicial branch the president would not have the “firmness” to stand against attempts by Congress to expand its power.

Sorry, there are no polls available at the moment.While Madison’s proposal was not accepted, the council of revision debates reveal why many of the Founders thought judges should not be asked about legal issues not yet formally presented for review in court. John Rutledge, later a Supreme Court justice himself, expressed the view that members of the judiciary should never be asked “to give their opinion on a law till it comes before them.” He, like other delegates, argued that any involvement in lawmaking or any pronouncement of prior opinions could jeopardize a judge’s ability to evaluate an issue fairly when it was brought before his court.

The Constitution gives the president the power to nominate judges for the Supreme Court. A majority Senate vote is required to confirm the nominee. The president can nominate whomever he chooses, and historically many have chosen friends and confidants.

With the expanding influence of the court in everyday life since the early 1900s — from social issues to credit card regulation — presidents have increasingly selected nominees reflecting their own views on the role of government. More recently they have selected nominees who can simply be confirmed.

Today’s elaborate, partisan confirmation hearings make a nominee’s fate more a test of presidential power than an opportunity to send the best candidate to our highest court. Alexander Hamilton’s assurances in the Federalist Papers that only the most highly qualified individuals would serve as federal judges are increasingly in jeopardy.

Agreeing upon a definition of “highly qualified” for the Supreme Court would be difficult for members of the highly partisan Senate, but even that debate would prove more fruitful than trying to read a nominee’s ideological tea leaves. (The American Bar Association evaluates nominees, and it deemed Kagan “highly qualified.”)

During his 2005 confirmation hearings, Chief Justice John Roberts avoided any specific opinions and instead gave his conciliatory “umpire speech” about justices needing to leave their ideologies out of decisions. Yet he has issued some surprisingly activist opinions.

Combine the Senate’s weak record of drawing any substantive ideological matter from nominees with the concerns of prejudice raised by the Founders, and we can see what’s wrong with Kagan’s confirmation hearings before they start.

Kagan herself has said that confirmation hearings should be more straightforward. They should be — but by developing the record of a nominee’s character and legal acumen, rather than by chasing ideological clues and highlighting political postures.

Kathleen Gronnerud

Kathleen Gronnerud is a writer/historian specializing in the Constitutional Convention and the presidency who writes for the History News Service. E-mail: kgronnerud@yahoo.com.

Republished with permission from the History News Network.