Kagan Day 2: A TV Star Is Born

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Elena Kagan took a firm position before the Senate Judiciary Committee on Tuesday: She is in favor of televising Supreme Court oral arguments. "I think it will be a terrific thing," she said. (Though she later fretted, "It would mean I'd have to get my hair done more often, Senator.")

It's easy to understand why. Simply put, this squat, henny-penny little woman has TV-star quality: mobile features, a mischievous smile, all-but-unshakeable poise, and an infectious giggle. (I once read a theory that people who look like Muppets do best on television. Can't you picture Elena Kagan singing "O is for Opinion" with Oscar the Grouch?)

Kagan has been able, seemingly without trying, to dominate a room full of silver-haired senators. That's an accomplishment, of course: but what's more impressive is that she's doing it without breaking a sweat. By mid-afternoon, the atmosphere in the hearings had turned punchy, with nominee and interlocutors trading affectionate quips. (Sen. Graham: "Where were you on Christmas?" Kagan: "Like all Jews, I was probably in a Chinese restaurant." ) Not even a great white shark could detect blood in the water in Hart Senate Building 216.

Kagan's approach is straightforward: Talk about what the court does, how it takes cases, and how law is applied, in rigorous but general terms. Asked what passions fuel her career, she answered "the rule of law." When Senator John Kyl (R-AZ) asked her what values or beliefs she would consider when the law provided no clear answers, she was firm: "It's law all the way down."

When Kyl attacked her mentor, Thurgood Marshall, she shut him down: "If you confirm me to this position, you'll get Justice Kagan, not Justice Marshall." Few Republican senators have even tried to lay a glove on her; the Democrats used her to get their talking points out to TV viewers. Diane Feinstein (D-CA) deplored the Heller and McDonald gun-rights decisions. Lindsey Graham (R-SC), who seemed to have come straight from a big dose of laughing gas at the dentist's, told her how much he liked her work on national security cases. Arlen Specter (D-PA) asked her about a large number of cases, then, conserving his time, moved on without allowing her not to answer.

Orrin Hatch (R-UT) talked about what a great decision Citizens United v. Federal Election Commission (the corporate speech case) was. Russ Feingold (D-WI) explained what a bad decision it was. Feingold so far is the only senator on either side who has come close to flustering her. Wasn't the court's action in Citizens United, deciding a broader question than the litigants had asked, unusual? The obvious answer is "yes." But the real answer is "#$%^, yes!" She knew she shouldn't say that, so after struggling for words, she answered, "It was an unusual action, yes."

The one senator who at least acts as if there's really a game on is the ranking Republican, Jeff Sessions (R-AL). Sessions first attempted to pin Kagan down by noting that other people had called her a "legal progressive."

Sessions: "Do you agree with the characterization that you are a legal progressive?"

Kagan: "I honestly don't know what that characterization means."

Sessions :"I'm asking about [Vice-President Biden Chief of Staff Ron Klain's] firm statement that you are a legal progressive, which means something. . . . I ask you again, do you think that's a fair characterization?"

Kagan: "I love my good friend Ron Klain, but I think people should be allowed to characterize themselves."

Sessions: "I would have to characterize you as being in with the theme of a legal progressive."

Then he moved on to his his real target: her role in military recruiting at Harvard. Sessions's account goes roughly like this: Kagan deliberately violated the Solomon Amendment (which required equal treatment for military recruiters on campuses, even though "don't ask, don't tell" violates most institutions' anti-discrimination policies). When she came into the deanship, she broke with the previous dean's policy of allowing equal access and used the flimsy excuse of a court decision in another circuit striking down the amendment to "bar" military recruiters. At the same time, she criticized the military, treated veterans and would-be service members "in a second-class way," and generated "an unhealthy atmosphere on campus." She changed her ways only when Harvard President Larry Summers overruled her.

Kagan's story was this: Harvard always allowed students and military recruiters "full access" to each other. The law school had followed the university's anti-discrimination policy by channeling military recruiters through the law schools' veterans groups rather than the normal Career Services Office. The Law School believed they were complying with the Solomon Amendment, but when the Department of Defense disagreed, the military was placed back under Career Services. When the Third Circuit Court of Appeals (centered in Philadelphia) struck down the Solomon Amendment, Harvard returned to its previous, veterans-group-recruiting-only policy. During that year, the number of students joining the military went up, not down. When the DoD protested again, she and Summers together agreed to put the military back under Career Services.

Further, Kagan testified, "I respect and indeed I revere the military. My father was a veteran. One of the great privileges of my time at the law school was working with the wonderful students we had who were going to go into the military. . . ."

Sessions, a former federal prosecutor, did a full Hamilton Burger, cutting off Kagan's answers, his voice raised: "That's not the question." Admonished by Chairman Patrick Leahy (D-VT), he persisted until his time was up--then tried to press on afterwards. In a hall press conference during recess, he hinted that Kagan was a liar: "When my examination ended, I felt less confident than before," he said. "I feel that she was not rigorously accurate."

Sessions's was the only sustained attack so far. It seems likely to become the far-right radio attack on Kagan. It will energize some part of the Republican base. By the time Kagan has finished her explanation and produced her supporting witnesses, however, it's unlikely to fly with anyone who watched the hearings.

When I say that Kagan is good on television, I am not speaking reductively. Her performance so far has not been a triumph of a glib talking head. Her testimony has combined confidence, intelligence, poise, and superb preparation, and certainly given TV viewers a reason to think her qualified for the court. I would be stunned if her public support did not spike after today's hearing.

Senators might do well to use caution in taking her on. She has been ready for them. Kyl, for example, tried to grill her about a memo she wrote to Justice Marshall during her clerkship. "For once," she wrote, "the (Solicitor General's) office is on the side of the angels." Surely that showed an anti-government bias?

Was Reagan solicitor general, Charles Fried, in office at the time? Kagan asked. Yes, Kyl said.

She looked over her shoulder. There was Fried himself, like Marshall McLuhan in Woody Allen's Annie Hall, sitting in the guest section to support her nomination. "Sorry, Charles," she said.

Hearings are slated to run through Friday, but funeral services for Sen. Robert Byrd are set for Friday afternoon. They might provide senators a chance to declare victory and withdraw.

On the first day of the hearings, Hatch told Kagan, "Something tells me this is likely to be your last confirmation hearing." If I were a senator, I'd vote for her confirmation to make sure I never had to share the small screen with Elena Kagan again.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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