Kagan Day 3: A Substantial Farce

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."

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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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