Article Title

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

Publication Title

Washington University Law Review


Written in the form of a fictional memo by Elena Kagan to the President of the U.S., this commentary offers a proposed opening statement for the confirmation hearing of the Supreme Court Justice nominee. The proposal includes a consideration of Justice Kagan’s previous comments concerning confirmation hearings and a disclosure of her views on specific constitutional questions. The commentary also addresses the tension between judicial activism and restraint, acknowledging the application of both the law and personal judgment. Finally, the hypothetical statement suggests the educative benefit of transparency as opposed to judicial silence concerning substantive issues raised during the confirmation process.