EDITORIAL: Kagan provides chance to change the process

Elena Kagan's nomination to the Supreme Court yesterday presents an opportunity for something other than the typical partisan, ideological and ultimately uninformative Senate confirmation hearing. Given the extraordinary power of the court, and justices' lifelong tenure, the public deserves more.

Kagan herself has called for more substantive, probing questioning of Supreme Court nominees. They should be pressed to comment on particular issues - such as privacy rights, free speech, and race and gender discrimination - that the court regularly faces, she said in a 1995 book review. Members of the Senate Judiciary Committee should apply Kagan's advice in her confirmation hearing this summer, and also explore her views on judicial activism and the nature of judging.

Kagan has an impressive resume, including stints as dean of the Harvard Law School and U.S. solicitor general, the government's lawyer, who is often considered the 10th justice. She has a reputation as a consensus builder. And she's certainly persistent, as evidenced by a recent court argument in which she gave as good as she got in an exchange of questions with Justice Antonin Scalia.

Questions about cases before the court are appropriately off limits for a nominee. But it's time to move beyond the cynical lesson of Robert Bork's failed 1987 confirmation bid: that nominees with short paper trails who say as little as possible improve their chance of making it to the court. That view makes it too hard for the public to gain any real insight into the thinking of a nominee who could be a member of the top court for decades. Kagan has called for a more probing process. The Senate should oblige. hN