Why Kagan Shouldn't Be Cautious

It's a lawyer's nightmare: the day of trial dawns, and you have, well, nothing.  The witnesses are diffident; the documents are innocuous; worst of all, you don't have a "theory of the case," an overarching story that would make jurors understand why the defendant ended up with the bag of meth, or why the plaintiff shouldn't have been in the crosswalk when the beer truck rolled through.  The gavel is about to go down, and you are trapped in the old no-pants-in-church dream.

I never thought I would feel sorry for Sen. Jeff Sessions (R-AL), the ranking member of the Senate Judiciary Committee, but I feel his pain.  In the seven weeks since President Obama nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens, the conservative movement has not developed a meaningful critique of her nomination--not even one as weak as the "wise-Latina-empathetic-racist" case they argued against Sonia Sotomayor a year ago.

Kagan is an elusive target. That's partly because of what she has: superb intellect and near-flawless legal credentials.  Earlier this month, I signed a group letter from legal academics favoring her confirmation because she is "exceptionally well qualified to take her place on the Court as an Associate Justice."  The letter was carefully composed, however, not to praise Kagan for what she does not have: positions on substantive issues or commitment to progressive causes.

Kagan has many admirers but few diehard supporters.  This makes life more, not less, difficult for Sessions and his fellow Republicans. It's hard to attack Kagan's resume, because it's stellar; it's harder to portray her as "outside the mainstream," because she's so carefully centrist. So far her record discloses nary a "wise Latina" moment. Hardest of all is to tar her by association, since her patrons are solid establishment figures. (That hasn't stopped Sessions from suggesting  that there's something shady about American icons like Abner Mikva and Thurgood Marshall.) Their approbation--and the fact that Republicans themselves refused to allow hearings on her nomination to the D.C. Circuit in 1999--draw the sting of the "no judicial experience" trope.  Blocked from the D.C. Circuit, she didn't go to Disney World. She became Dean of Harvard Law School.

This has led to what might be generously called flailing. Republicans have attacked Kagan's opposition to "don't ask don't tell;" that critique might be more cogent if the Congress and the military weren't jettisoning the policy. Former Judge Robert Bork complains that she once said nice things about an Israeli Supreme Court Justice. Pat Buchanan helpfully points out that she is Jewish. Other conservatives suggest that she is part of "the concerted and ominous campaign under way to bring Shariah to America."   

So far, this adds up to less than zero--like the defense lawyer who argues that (1) the defendant was never at the crime scene; (2) the money was already gone when he got there; and (3) the money was still there when he left.

What we might call the emerging "least-lame" strategy is to paint Kagan as subservient to her partisan patrons.  That seems likely to be the major line of attack when the hearings begin Monday.  It probably offers Sessions & Co. the greatest chance of salvaging some political advantage while avoiding looking silly.  But it's not a winning strategy, because Kagan worked for Clinton, not Obama. She can't credibly be painted as a crony. There is no equivalent of Harriet Miers's gushy notes to Bush.  (I may lack imagination, but I am trying to imagine Elena Kagan saying her boss was "the greatest.") 

At this point, it's all but obligatory to bemoan the stultifying prospect of a hollow confirmation hearing.  And, to be sure, the odds favor one. Above all, lawyers are trained never to ask questions they don't know the answer to, and never to give answers they haven't rehearsed. These hearings are likely to run true to form. 

Sessions and his troops can cut their losses by portraying Kagan as an agent of the dictator-Obama-socialist-health-care-bank-bailout-gun-seizure-international-law-no-more-french-fries agenda.  They won't lay a glove on Kagan, but they will feed red meat to the base and afford cover for their caucus to vote against Kagan on the floor.  

Kagan, for her part, is certainly being told to distance herself from her 1995 article arguing that Court nominees should express more direct views on the meaning of the Constitution, the proper work of a judge, and the role of the Supreme Court.  Float like a butterfly, she is being told, but on no account sting like a bee.  If she follows that advice, she will bore the nation, but handily win nomination.

Lawyers know, however, that a client always has the right to testify, regardless of counsel's advice.  And once on the stand, the client may say whatever she chooses. Perhaps the most likable things about this nominee are the self-confidence (perhaps even the cheek) that has won the trust and admiration of figures like Mikva, Bill Clinton, and Obama, and the personal sill that has made her effective with colleagues across the political spectrum.  

Forget "empathy." How about "audacity?" Kagan might dare to discuss the topics faced by this court and by the country.  Not specific cases, but themes: What is the role of the states in the federal union?  How much deference do the courts owe to Congress?  Is there something improper in the courts' consideration of international law?  How powerful should the executive be in times of armed conflict?  

We live in a moment when the attention of ordinary citizens is riveted on the Constitution.  Yet what many of them call "the Constitution" bears little resemblance to the one that lawyers and scholars are familiar with.  It's a worrisome dissonance.  

When Kagan raises her right hand, she will be addressing the largest audience she will ever have.  They don't know anything about her; they don't know much more about the Court, and they seem not to know much about the Constitution.  She can try to explain something about all three.  

It would be a risky move indeed; but if she succeeded, she would win more than the guarded respect she now commands.      

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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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