PORTLAND – For the second time in just a year, the U.S. Senate is poised to consider confirmation of a new associate justice for the Supreme Court.

Last month, President Obama nominated U.S. Solicitor General Elena Kagan for this appointment, and the Constitution requires the “Advice and Consent” of the Senate. The Senate Judiciary Committee begins hearings on Monday. Prepare yourself for a media flood of “all things Elena Kagan.”

This is a moment of tremendous importance, given the pivotal role that the Supreme Court plays in our democracy and in our lives. Notwithstanding a recent cluster of retirements, appointing one of nine Supreme Court justices is a relatively infrequent event in the arc of judicial history.

It is a lifetime appointment — no doubt, one of the best dead-end jobs out there — which raises the stakes.

Think of this process as an opportunity and privilege for Mainers to connect with the highest court in the land. As senators pepper Kagan with questions, we all will be privy to her sophisticated legal mind.

The small population and collaborative political culture of Maine places us close to the Senate process. Although neither Sen. Olympia Snowe nor Sen. Susan Collins is a member of the Judiciary Committee, both are fully engaged and accessible. As the hearings unfold, think of the Judiciary Committee’s questions as yours and don’t hesitate to suggest questions you want answered.


Of course, many of our specific questions will find no immediate answers. Judicial hearings in recent years have witnessed cautious responses and avoidance of particular issues. Judges decide cases in the context of particular facts, and judicial candidates are reluctant to respond to abstract or hypothetical questions.

But Elena Kagan herself has written on the importance of responsiveness in confirmation hearings of this kind, asking, “If substantive inquiry is off-limits, on what basis will the president and Senate exercise their respective roles in the appointments process?”

And questions there will be. Elena Kagan has never served as a judge and thus has no judicial record for review, but she has robust academic, professional and life experiences.

In the 1990s, she served as President Bill Clinton’s associate White House counsel, deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council. In 2003, Kagan was named dean of Harvard Law School and served until 2009, when she became U.S. solicitor general, representing the federal government as the nation’s top lawyer before the Supreme Court.

The ultimate result of the Senate process is yet unknown. Last year’s confirmation of Associate Justice Sonya Sotomayor showed that the Senate can arrive at a bipartisan conclusion regarding court appointments. Both Sens. Snowe and Collins voted to confirm Justice Sotomayor.

Elena Kagan’s nomination has drawn early support from across the political spectrum.


Eight former solicitors general, including Republicans Ken Starr, Ted Olsen and Charles Fried, support her nomination. For the record, I have tremendous respect for Elena Kagan and have expressed support for my former fellow law school dean.

Why should we care about the confirmation process? We care because the Supreme Court is the final arbiter of laws that affect us and protect our rights. The court interprets the Constitution and infuses it with meaning in a modern context.

With no obligation to hear every appeal, the Supreme Court selects carefully among appeals presented and serves a unique agenda-setting role for our national dialogue.

Court action speaks volumes about the importance we place on the most challenging issues of the day.

In the end, we all want a brilliant jurist, but also someone who understands the impact of the court’s decisions on ordinary Americans. We need someone with capacity for coalition building among the justices.

We should appoint a justice who is superbly qualified for the job, has outstanding legal credentials, is fair and impartial, and will make judicial decisions based on the law and the Constitution.


As more information about Elena Kagan emerges in the coming weeks, drink it in. Read facts, opinions, records, anecdotes and interesting stories of an active life.

Let Sens. Snowe and Collins know that you are paying attention and suggest issues you want discussed in the hearings. An educated electorate yields an informed decision.

With so much on the line for our next Supreme Court justice, we dare not settle for anything less.



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