If we are to move beyond scripted hearings in which nothing about a nominee's judicial philosophy is revealed, then Judiciary Committee members should take the nominee at her word and ask definitive questions, and she should answer them.
At the top of my list are questions about Kagan's views on the Supreme Court's striking down of campaign-finance reform laws and its disregard for congressional findings of fact. In an extraordinary, perhaps unprecedented ruling this month, the court nullified Arizona's campaign-finance law months before a primary election. It did so in the absence of briefs, oral argument, or even a petition seeking Supreme Court review.
The Arizona law provided for matching public funds for candidates whenever better-heeled opponents spend more than a certain amount of their own money on a primary campaign. Opponents of the law filed suit, claiming not that their First Amendment right to free speech had been directly abridged, but that the speech of their opponents had been enabled, indirectly affecting the exercise of free speech.
A U.S. District Court agreed with that argument and declared the law unconstitutional. The Ninth Circuit Court of Appeals reversed the ruling, finding that Arizona has a legitimate interest in limiting the advantage of independently wealthy candidates by counterbalancing their expenditures with public financing.
An extraordinary sequence of events followed. Without filing a petition for certiorari, or court review, the opponents of the Arizona law asked the Supreme Court to stay the Ninth Circuit decision. The Court denied the request but invited them to renew it if they informed the court of an intent to file a petition for certiorari. A week later, the court - again without explanation or a petition for certiorari - vacated the Ninth Circuit order.
The practical effect of the order is that Arizona candidates will not receive matching funds even if their opponents exceed the law's expenditure threshold.
This episode followed the court's controversial 5-4 decision this year in Citizens United v. FEC, which changed a century-old tradition of prohibiting corporate contributions to political campaigns. The court in effect gave corporations a green light to make unlimited expenditures on behalf of candidates.
In Citizens United, the court ignored more than 100,000 pages of congressional findings of fact on the corrupting influence of money in campaigns, which formed the basis of the McCain-Feingold campaign-finance reforms. This follows the court's disturbing trend toward discounting congressional fact-finding, a trend that threatens the balance of power among the branches of government.
"Pulling out the rug beneath Congress in this manner," Justice John Paul Stevens noted in a dissent, "shows great disrespect for a coequal branch."
Citizens United also contradicted the commitments of Chief Justice John Roberts and Justice Samuel Alito, who testified during their confirmation hearings that they would defer to congressional fact-finding.
Unfortunately, the question of how to get justices, once confirmed, to honor commitments made in confirmation proceedings will not be answered in the Kagan hearings. Perhaps televising Supreme Court arguments would create enough public pressure to achieve the proper balance of judicial independence and respect for commitments made to the Senate.
Arlen Specter is Pennsylvania's senior U.S. senator. He can be reached via specter.senate.gov.