A Vapid and Hollow Charade

I've been able, due to not being employed (and thank you, Republican asshole senators, for filibustering the extension of unemployment benefits) to watch much of the hearings to confirm Elena Kagan as an Associate Justice of the U.S. Supreme Court. As usual, they are alternately fascinating and crushingly boring, but always an example of a strange ritual of theater that happens in the Senate whenever an opening on the court comes up.

Kagan, in 1995, wrote an article in which she took the entire process to task. She had worked for the Senate Judiciary Committee during the Ruth Bader Ginsburg hearings, and in the article she called the process "a vapid and hollow charade," and one of "vacuity and farce." Her point was that the hearings became a kind of kabuki, with senators not really asking questions--instead directing their remarks beyond the nominee, striking poses and seeking to earn points with their constituents. The nominee's role, at least in the post-Bork days, is to reveal as little of their judicial philosophy as possible, disclaiming that they do not want to prejudice themselves against a case or topic that may come before them on the court.

All this is true, and surely Kagan realized those words would be thrown back at her. But I found her testimony to be frank and candid. She said she would not "grade" previous cases, especially those decided by potential colleagues, and would not discuss her personal beliefs on issues that might come before her. She did say that cases that had been decided are settled law, particularly the two recent gun control cases.

As for the senators, they were predictable on both sides. The Republicans, with a scant record left by Kagan to pick through, used smoke and mirrors to try to conjure up a controversy. Kagan's actions as dean of Harvard Law School regarding military recruitment bore intense scrutiny, particularly by Senator Sessions of Alabama, whose petulance bordered on the manic. It seems to me that Kagan was between a rock and a hard place on the issue, and chose to side with the long-standing rules requiring any employer recruiting on campus to sign an anti-discrimination pledge. To cast her as unmilitary seems grandiose and a stretch of logic. There was also some rattling about foreign law and worries about her being a "legal progressive." Kagan, sensibly so, wondered what that meant.

The Democrats did little pressing of the far-left's concern about her views on executive power. Instead they spoke beyond her to criticize some recent decisions by the Roberts court, particularly Citizens United, Ledbetter, and the Exxon punitive damages decision. They seemed to imply that thank god Kagan would not have aligned herself with those decisions, but she could not agree with that thinking (she did argue the Citizens United case as Solicitor General, so presumably she would have voted against the findings of the majority, but you never know).

A few senators either acquitted or embarrassed themselves. I find Arizona's John Kyl to be arrogant, and Tom Coburn of Oklahoma, while entertaining as a spectacle, proves himself to be a danger to us all. Lindsey Graham took the proper tone of being respectful while disagreeing. As far as Scott Brown, the new hunky senator from Massachusetts goes, I was unimpressed with him. He introduced Kagan, as part of a tradition accorded to the nominee's home senators. He spoke as if rousted from bed at gunpoint.

On the Democratic side, I was again impressed with Russ Feingold of Wisconsin and Al Franken of Minnesota. Amy Klobuchar, also of Minnesota, did her usual best to inject levity to the proceedings (last year she asked Sonia Sotomayor if she had watched baseball's all-star game) by jokingly asking Kagan if she had an opinion on the Team Edward/Team Jacob issue in the Twilight movies. "I wish you wouldn't," Kagan replied.

As for Kagan, she seems like a card. She had two great zingers. In an answer to Arlen Specter on televising the Supreme Court, she said she was for it, but that she would have to get her hair done more often. To Graham, who was leading to a discussion of the Christmas-day underwear bomber, she answered his question of where she was on Christmas day thusly: "As with most Jews, I was probably in a Chinese restaurant."

Kagan will be confirmed, but will probably only get a handful of Republican votes, and this is a shame. In retrospect, I think it was a mistake for then Senator Obama and other Democrats to go to the wall on the Roberts and Alito nominations. They were completely qualified nominees, and to expect President Bush to have nominated someone moderate was fanciful. After the Bork hearings, the respect of the Senate for nominees from opposing parties got back to a reasonable peace. Souter, Ginsburg, and Breyer all received at least ninety yea votes (the exceptional Thomas hearings were another story). As Graham said repeatedly, elections have consequences, and to deny qualified nominees out of political pique serves no one's interests, and instead gums up the judiciary with unfilled seats. It's time the senators on both sides grew up.