Confirmation theater: Senate hearings on Supreme Court nominees keep the public as ignorant as possible.

• Author: Balko, Radley
• Position: Column

STRIKING A BALANCE between the state's police power and the rights of the accused is among the Supreme Court's most important tasks.

Yet criminal justice was virtually absent from the confirmation hearings for Supreme Court nominee Elena Kagan, just as it was from the hearings for Justice Sonia Sotomayor. Because there is little difference between Democrats and Republicans in their fondness for increasing police power, there aren't many political points to be won by grandstanding on, say, the Fourth Amendment.

But even if there were more space between the parties on these issues, we'd still know almost nothing about where Elena Kagan stands on them. The confirmation process has morphed into political theater designed to obscure the views of prospective Supreme Court justices, not to reveal them. Worse, the Beltway conventional wisdom says this is exactly the way it ought to be.

You might think we could get a feel for how Kagan would come down on hot-button issues by looking at her time in the Solicitor General's Office. Shortly after President Barack Obama announced her nomination, I did just that on reason's blog, noting that during her tenure Kagan argued that states should be allowed to deny post-conviction DNA testing even when it could establish innocence; that prosecutors should have absolute immunity from lawsuits even when they manufacture evidence that helps convict an innocent person; and that the government should have an expansive power to censor material it deems offensive. Similarly, Salon's Glenn Greenwald detailed how Kagan pushed for further expansion of presidential power in areas such as extraordinary rendition, executive privilege, state secrets, and indefinite detention.

But Tom Goidstein at SCOTUSBlog, exemplifying the typical Washington response, argued that we shouldn't judge Kagan by her work for the Obama administration. "The Solicitor General acts as the attorney for the United States and therefore asserts the position of the government, without regard to whether she personally shares the same view/' Goldstein wrote. Yet it seems reasonable to surmise that Kagan knew where her new boss came down on these issues when she took the job. Obama obviously was comfortable enough with her positions to offer her the position; she obviously was comfortable enough with his to accept. The alternative is that Kagan was willing to take a job that would require her to ask the Supreme Court to set precedents she believes are...