Was Kagan forthcoming? So far it seems to depend on whether you thought she’d be.

I suggested about 7 weeks ago that Elena Kagan might be more forthcoming in her confirmation hearings about the substance of her legal views than has any nominee since Robert Bork’s nomination was rejected over 20 years ago. Now that the hearings are complete, my colleague on the Case Western Reserve Law School faculty, Jon Adler, voiced what seems to be the common wisdom iyesterday — Kagan continued in the recent tradition and avoided answering direct questions:

Wednesday’s hearings offered more of the kabuki theater we have come to expect from Supreme Court confirmation hearings. Senate Republicans tried to elicit evidence she would be a doctrinaire liberal on the court, with little success. Peppered with questions on topics from Habeas Corpus and the Commerce Clause to gun rights and gay marriage, Kagan refused to show her hand.

Jeffrey Rosen, however, has what seems to be a very different view, that “[f]ar from turning into a ‘vapid and hollow charade,’ to use Elena Kagan’s now-famous condemnation of other Supreme Court confirmation hearings, her own have been impressively substantive.

Kagan, of course, did refuse to answer any questions regarding how she would rule in pending or future cases. As a lawyer, I would expect nothing else. No responsible legal mind would prejudge a case before allowing the lawyers for the parties to the case present their evidence and arguments to the court. Only law professors think legal questions can and ought to be decided based on the possible circumstances and arguments they can imagine without input from people whose lives will genuinely be affected by the decisions.

As Rosen points out, Kagan was asked about and did answer that she considered certain matters that existing precedent ignores important, no small thing. Thus, for example, Kagan was asked whether the decision in New York Times v. Sullivan, which insulates from liability false statements about public figures unless they are made with knowledge of their falsity, is sufficient in an age of social media and blogging. Kagan first graciously stated that “I think people should be able to write anything they want about me, and I don’t think that I should be able to sue them for libel” (again, no small thing), but then acknowledged that the legal system does have to recognize the reality of harm posed by current media:

Even as we understand the absolute necessity for a kind of New York Times versus Sullivan sort of rule and for protection of speakers from libel suits, defamation suits, even as we understand that, we should also appreciate that people who did nothing to ask for trouble, who didn’t put themselves into the public sphere can be greatly harmed when something goes around the Internet and everybody believes something false about a person. That’s a real harm. And the legal system should not pretend that it’s not.

As a lawyer I respect the nuances she displayed on issues pertaining to gay rights, though it’s plain to me too that people with fixed views on these matters would like her to share their fixed views.

After I have had a bit of time to review the transcript of the hearings, I hope to include my own evaluation of her performance.