Kagan Day 3: A Substantial Farce

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In John Cheever's memorable satire, The Wapshot Scandal, an aging senator faces an arrogant rocket scientist across a congressional hearing table, and begs for mercy:

"We possess Promethean powers but don't we lack the awe, the humility, that primitive man brought to the sacred fire? Isn't this a time for uncommon awe, supreme humility? If I should have to make some final statement, and I shall very soon for I am nearing the end of my journey, it would be in the nature of a thanksgiving for stout-hearted friends, lovely women, blue skies, the bread and wine of life. Please don't destroy the earth, Dr. Cameron," he sobbed. "Oh, please, please don't destroy the earth."

Elena Kagan, justice-to-be, seems to be today's equivalent of the rocket scientist. Everyone can tell she's brilliant, and some think she's dangerous. Perhaps it should not surprise us that the last dramatic moment of her testimony before the Senate Judiciary Committee consisted of an aging senator imploring her not to destroy life as we know it.

The suppliant was Sen. Tom Coburn (R-OK), who has been near tears for two days running now in the hearings on Kagan's nomination. As the hearing lurched toward recess, Coburn begged for, of all things, "empathy with those of us that feels there's a low confidence right now in the institutions of government." He asked: "Have you ever contemplated the idea of what your freedom was like 30 years ago and what it's like today? There's a marked change in this country when I was 20, and today when I am 62."

The Obama health care program has made the people feel they have lost their liberty. "Is that important? The fact that confidence of all government institutions is at an all time low? Should we be concerned about it? Should we be trying to right the ship?"

Kagan responded: "Confidence in our institutions is terribly important, confidence in the Supreme Court is terribly important. But I do believe the job of a Supreme Court justice is deciding cases."

In her now-famous 1995 article on the confirmation process, Kagan had written that Senate hearings on judicial nominations had taken on a qualify of "vacuity and farce." We have made progress; today's hearing was farce without vacuity.

All day the pattern was this. Democrats hogged the ball and passed it back and forth, running the set-piece "John Roberts is an activist doo-doo head" play. Republican strikers appeared to be setting up plays in front of goal, but then broke off each and brought the action to a halt. Kagan at times seemed like a disappointed Charlie Brown standing in an empty playing field.

I too was disappointed, because, like Kagan, I am, well, a law nerd. I am fascinated by questions of procedure, standard of review, and individual standing to sue. Kagan plainly is too, which is a good thing, because questions like that dominate a justice's working life.

But her Republican interlocutors, who had worried that her career had been, in the words of Sen. Jeff Sessions (R-AL), "consumed more by politics than law," really didn't want to talk law talk. They wanted politics.

Sessions appeared to resume his attack on her relationship with the military as solicitor general. This time, he questioned a decision she made as solicitor general not to seek Supreme Court review of two decisions concerning the "don't ask, don't tell" policy barring service by openly gay service members. One decision, in the First Circuit, had upheld the policy; the other, in the Ninth, held that any service person faced with discharge under the policy was entitled to a hearing in which the government would be required to prove that he or she in particular was a danger to the cohesion of the military--a costly and time-consuming burden for the government to bear.

Sessions was puzzled that Kagan had not recommended that the government appeal either ruling. He implied that the decision not to seek review evinced a lack of zeal for the policy. Kagan began to explain the calculations that go into deciding whether to appeal an adverse decision right away or wait for a trial to conclude below: "We thought it would be better to go to the Supreme Court with a fuller record about the particular party involved and more importantly with a record that would show what the Ninth Circuit would demand the government do." That was doubly important because there is a "Supreme Court presumption that cases should not be taken in an interlocutory (that is, before a final judgment) posture and we had some good reasons for thinking that our case would be made stronger if we did not take the case in an interlocutory posture."

Interlocutory appeal? I was getting excited. But Session changed the subject: "The last refuge of a big government scoundrel is the Commerce Clause."

Later, Sen. Charles Grassley (R-IA) asked, "Do you believe that marriage is a question reserved for the states to decide?" This question, Kagan pointed out, was the subject of a high-profile suit now in the courts, making comment improper. Then Grassley asked whether she considered a 1970 case on the issue, Baker v. Nelson "settled law."

Baker v. Nelson was an early case claiming that banning same-sex marriage violated the Constitution. The Minnesota Supreme Court held it did not, and they appealed to the Supreme Court, which dismissed their appeal in one sentence for "want of a substantial federal question." Kagan (and I, in the background) brightened at yet another nerd opportunity. "The view that most people hold I think is that (such a summary dismissal) is entitled to some precedential weight but not to the weight that would be given to a fully argued fully briefed case," she began, clearly ready for a long talk. Enough of that. "I'm disappointed that you didn't use the world 'settled law,'" Grassley said, and moved on.

Sen. John Cornyn (R-TX) read her a lengthy blind quote about the elements a judge should look to in deciding cases, including "evolving norms and traditions of our society," and invited her to adopt it as her own. Kagan perked up again, like Charlie Brown deciding that this time Lucy really is holding a football. "Traditions are most often looked to in considering the Liberty Clause of the Fourteenth Amendment," she said. "I think every member of the court thinks that the Liberty Clause applies to more than just restraint. Almost every member agrees that it includes some substantive protection." She began to cite Chief Justice Rehnquist's discussion of tradition in the right-to-die case, Washington v. Glucksberg. This sounded jolly indeed--but Cornyn cut her off to reveal that the author of the quote was controversial judicial nominee Goodwin Liu. Since Kagan had never accepted the quote as a statement of her own beliefs, the revelation was kind of a flop.

The Republicans never quite decided whether to use her testimony to challenge Kagan as a crazed judicial activist (a philosophical attack) or as a sinister political operative (involving allegations of various sneaky deeds in the past). In the sneaky-deed area, they allege that she mistreated the military at Harvard Law School and is not being candid about it now. But that line of inquiry has not been systematically followed up--and Leahy read into the record a glowing endorsement of her time as Dean by a Harvard Law grad now on active duty in Afghanistan.

The other evil-deeds trope is an allegation, made yesterday by National Review Online and echoed today by Sens. Hatch and Coburn, that during the Clinton years she had pressured the American College of Obstetricians and Gynecologists to change its formal statement on the need for a health exception to a proposed "partial birth abortion" law. The magazine piece claimed that it had been an attempt to "manipulate medical science to fit the Democratic party's political agenda;" Kagan insisted she had been attempting to make sure that the draft statement accurately reflected ACOG's policy. No one in the room quite charged that she had done anything wrong, though Coburn, a doctor, told her that the statement as eventually released was inaccurate.

The philosophical attack consisted of trying to get her to confess that she secretly wanted to be an "activist judge." Not surprisingly, they did not get the confession they sought.

Now their chance to trap her on the stand is ended; Thursday will be occupied with witnesses pro and con. At the end, Sessions confessed himself still troubled and Leahy confessed himself still confident.

The nominee, cruelly unmasked before the world as a nerd, smiled wearily at a table where, as Leahy pointed out, she would likely never have to sit again.

More coverage:

Kagan Day 2: Candor on the Constitution

Kagan Day 2: A TV Star Is Born

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

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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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