Kagan Day 1: 'Vacuity and Farce,' the Sequel

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Elena Kagan spent most of Monday afternoon in Hart Senate Office Building 215 wearing a blue jacket, pearls, and an expression of vague unease, like a society lady in a 1930s Peter Arno cartoon hesitating over whether to tell a fellow diner that her fox fur stole was on fire. 

The mummery of opening day is an odd way to introduce a potential Justice to the nation. She was required to sit on camera without speaking while a series of politicians alternately acclaimed her as a new Learned Hand and reviled her as a threat to the space-time continuum. She had to sit quietly while political opponents suggested that the American "mainstream" does not include former Justice Thurgood Marshall, former Judge Abner Mika, or even her own parents, who raised her in a "liberal household." This onslaught would, perhaps, arouse in any of us a nameless dread. At any rate, Kagan played no facial favorites--she gave Sen. John Kerry, the home-state Senator who came to introduce her to the committee, the same quizzical look she directed at Alabama Republican Jeff Sessions when he warned that "The personal right of every American to own a gun hangs by a single vote."

The first day of the hearings was enough to induce coma. There really seemed to be three different groups in the room, holding parallel events by turns. Group one was the Democrats.  Astonishingly, they stuck more closely to their talking points than did Republicans to theirs. The main talking point was: the Roberts Court is a handmaid of big business or corporations.  In employment law, torts law, and election law, it has done the bidding of the rich to the detriment of Main Street. As for Republican worries about "activist judging," Democratic Sen. Richard Durbin retorted, "I have two words for them--Citizens United." (This case, decided late last year, struck down all limits on political advocacy spending by private corporations--and, the Democrats say, will poison our politics and make it impossible to enact progressive reforms.)

Group Two were the Republicans, who seemed less able to stick to their script, perhaps because they don't believe in it. The strongest, or least weak, argument they have is that Kagan's experience is thin and, as Sessions charged, "strongly weighted toward policy, not law." They seemed disposed to portray her as anti-military because she followed Harvard's anti-discrimination policy even when it restricted military recruiting at the Law School because of the discriminatory "don't ask, don't tell" policy. But soon the attack wandered into questions about her two-minute speech introducing Israeli Supreme Court President Aharon Barak as "my judicial hero." Then we had the charge by Senator Charles Grassley that because Barack Obama named her, Obama "plainly believes that you measured up to his empathy standard." Texas Sen. John Cornyn made this contribution: "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war and we are all the crew.  I don't know why I thought of that."

Perhaps the reason for Cornyn's oracular proclamation is that there doesn't seem, at this point, much to say. The most important opening statement may be that by South Carolina Republican Sen. Lindsay Graham, who genially greeted Kagan, praised some aspects of her tenure as solicitor general, and basically predicted her confirmation. His insouciance may arise from his next prediction: "I don't expect this appointment to change the balance of power." Ranking Republican Member Sessions, at a press conference during a recess, had the pop-eyed look of a McCain-Palin campaign staffer in late October 2008 predicting that Pennsylvania would go Republican.

Group Three was Kagan herself, who finally came alive when asked to give her brief opening statement. She was by turns as zippy as Mickey Rooney proposing a show in Dad's barn (when describing her joy in teaching law to students) and as stern as a third-grade teacher challenging favored students (when pledging, if confirmed, to "listen hard, to every party before the court and to each of my colleagues").

In the end, her opening statement was no more substantive than were the senators'. She cited the admonition given by Harvard Law School to each graduating student that law is a system of "wise restraints that make us free." The adage echoes conservative forefather Edmund Burke, who warned that "the restraints on men, as well as their liberties, are to be reckoned among their rights." It was a conciliatory gesture to the conservative senators (those, at any rate, who know who Burke was).

Burkean bromides may not suffice tomorrow. On one matter, the Republicans were on message. In 1995, Kagan had mocked the "vacuity and farce" into which Senate confirmations had tumbled after the Bork and Thomas hearings. Senators warned that they would expect her to live by that standard.

As they did so, she looked vaguely uneasy. But no more so than usual.
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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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