http://www.hnn.us/articles/128551.htmlBy Kathleen Gronnerud
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.
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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.
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