Originally appeared at Slate.com on June 23, 2010.


The confirmation hearings of Supreme Court nominee Elena Kagan begin Monday, and court watchers are steeling themselves for another round of the vacuous Q&A that has become the stuff of modern confirmation hearings.

What she will likely talk about—if she's anything like other recent nominees—is that, if confirmed, she promises to become Kagan the Robot. She will find 100 different ways to assure us that when deciding cases she will do nothing more than mechanically apply the law to the facts. And this is where Kagan needs to throw away the script. The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.