Kagan Day 2: A TV Star Is Born

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.

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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