What Elena Kagan Could Have and Should Have Said (and Still Have Been Confirmed)

Abstract

During her confirmation hearings, Justice Kagan backed away from numerous critical comments she had previously made about the nomination process. No one knows why she changed her mind but it is likely that the shift resulted more from a political calculation than a change of heart about the nature of the process. This Commentary suggests that Justice Kagan could have testified consistently with her previously expressed views and still have been confirmed.

Keywords: Kagan, Supreme Court, Confirmation, Judicial Confirmation, Judicial Nomination, Elena Kagan, Supreme Court of the United States, Supreme Court Justices

JEL Classification: K00, K40, K49