The Kagan questioning was uneventful. She gave a confident and engaging performance--and, of course, one that conveyed no new information. She once regretted that the confirmation process has become so vapid, but when her own came around she wisely conformed.
Mike Kinsley thought it a pity. Emphasising the powers and privileges of the justices, he disapproves of the post-Bork understanding that smart nominees say nothing.
Defenders of this custom predict that any comment that even hints at a specific conclusion on an issue that may come before the Court will inevitably be interpreted as a promise, with hell to pay if it is broken. Dissenters (including me) say, Why should this be? Why can't it be taken for what it is: a statement of the nominee's current thinking, with the possibility that...she may change her mind?
Kinsley points out that Kagan has already changed her mind on an important legal issue-whether Supreme Court nominees should be forthright at their confirmation hearings. So she has shown how easy it is to state one's current thinking without making a promise. And, Kinsley says,
[If] the answer isn't a promise, then there's nothing wrong with asking the question.
True. But Kagan obviously was not worried about committing herself to rule a certain way in a future case. She was worried about giving Republicans the means to embarrass her and the White House.
This is not a good-faith process. If the senators were conscientiously looking for political moderation (which I think they would be right to require) and a good judicial mind and temperament, it would be different: she would owe both them and the public substantive answers to their questions. They aren't, so she doesn't. In fact, she would be crazy to provide them.
Within these suffocating constraints, she did say a couple of things that were both mildly surprising and right. A senator asked her whether Congress had the power under the constitution to make Americans eat three vegetables and three fruits a day.
"Sounds like a dumb law," she said:
But I think that the question of whether it's a dumb law is different from the question of whether it's constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless.
Good answer--though if she is confirmed it will be interesting to see how often she votes to uphold a law whose consequences she objects to, or to strike down a law whose consequences she would welcome. Supreme Court justices, conservatives and liberals alike, instantly become experts in reading the constitution to serve their political preferences. Getting to the point where they can do it unconsciously perhaps takes a little longer.
I also liked her criticism of John Roberts's umpire analogy, which he offered in his own confirmation hearing when called upon, in his turn, to pretend that justices are politically neutral. (See how that turned out.) The Supreme Court merely reads the rules, and calls balls and strikes, he said. No, Kagan responded on Wednesday.
The metaphor might suggest to some people that law is a kind of robotic enterprise, that there's a kind of automatic quality to it, that it's easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that's not right... [Legal] judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law does require a kind of judgment, a kind of wisdom.
Correcting the boss before she even has the job. Good for her.