I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:
2. A grip applied manually or mechanically to move something or prevent it from slipping.
3. A device, such as a tackle or lever, used to obtain mechanical advantage.
4. A position, as of a lever or one's feet, affording a means to move or secure a weight.
You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."
Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.
And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.
... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.
Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?
I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.
Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?
To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.
But, as I told my dinner companion...
Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!
... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.
Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.
I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s.
Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted — refudiated! — by the fact that you are still here writing this column.
They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.
And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.
The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.
They saw the candidates' lives whole... Broder's elevated diction goes wild. The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....
He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.
They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.
Look out! The floodgates have opened! Broder's going back to 1960!
It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.
Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?
I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.
That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his... eminent dome... his venerable cranium... his... nugatory noggin.
"I am not there to entertain anybody," says Clarence Thomas, disparaging Supreme Court oral argument, in which he famously refrains from participating:
[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.
When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”
“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”
Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:
Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....
[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....
[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....
Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.
So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees, were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?
[T]he tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns....
Much of this is the familiar hand-wringing over Citizens United. The editors admit that a lot of what happened isn't so bad, but it must be bad. It's the Roberts Court. So:
Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups.
Notice the big flip that's taken place in the last year or so. Liberals worry about constitutional rights getting in the way of legislation, and conservatives have cozied up to the notion of unwritten rights. For that to happen, everyone has to stop focusing on the right of privacy. Isn't it odd?
If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.
There's no other reference in the editorial to "judicial modesty" or Elena Kagan so I'm not sure what Kagan said that's being interpreted as a pledge by the new Justice to go in there and school the oldsters about what something really means. But everyone who has any sophistication about law knows that the Constitution trumps legislation and the question is the scope of constitutional rights. The nominees aren't asked to say — nor would they say — that they will interpret rights narrowly so that more legislation will survive or, conversely, that they will interpret rights expansively and nullify democratic decisionmaking. They're all asked to say and they all promise to say exactly what the rights really are and to enforce those rights despite pressure to allow the democratic choice to prevail and despite their own preferences about what ought to be legislated.
But the New York Times must, on schedule, wind up its readers about the conservatives on the Supreme Court. It's all such tedious sophistry.
I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:
Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.
Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses. We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)
I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.
Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....
Here's the live stream. Yesterday was tedious beyond words, and, accordingly, I wrote nothing. Today, there's some potential for a spark or 2, and I'll do some live-blogging here.
8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.
8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.
8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.
8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific policy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination policy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination policy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.
9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!
9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).
9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.
9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.
9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."
10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.
11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.
11:56: Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.
12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.
Here's the live stream, which begins at 12:30 ET. You'll also be able to watch non-live. After all the new Supreme Court cases this morning, I'm not going to park myself in front of the screen and watch the Senators read their statements, which should take all afternoon. I'll catch up later and do some commentary, but I need to go live in the physical world for a little while. Please comment on the hearings in this post.
For most of the past fifty years, attending Harvard Law School was a miserable experience....
During Elena Kagan’s tenure as dean, a miracle occurred. Harvard Law School was transformed. Today, students embrace the institution. The professors engage with one another. And the school’s widely discussed dysfunctions are distant memories. Kagan accomplished this miracle by modeling two important and traditional American values: hard work and community. Kagan was known for walking the halls tirelessly to learn the views of her bright and independent colleagues and to seek consensus. She broke the gridlock between faculty political factions that had atrophied the academic life of the institution. Even more importantly, she transformed the student experience. This essay seeks to describe Kagan’s transformational leadership and provide insight as to the specific changes Kagan made to accomplish the miracle.
Let's take this all as true. Kagan has skills that worked brilliantly in the context a dean transforming a deeply dysfunctional, highly elite law school. But how will those skills apply in the context of an individual Justice on the Supreme Court? When a troubled law school brings in a new dean, it is looking for leadership and transformation. But there is no reason to think that the Supreme Court Justices look toward the newcomer for leadership at all, and she arrives to fill the seat that was vacated, not with any problem to be solved and institution to be transformed.
Some hosts may challenge your views. Stay calm and firm....
And "discussion points":
Elena Kagan understands how the law affects ordinary Americans, giving a great deal of thought to legal issues which profoundly affect Americans’ everyday lives – including freedom of speech and government policy making.
If you say that, maybe the host will say: "What do you mean she's given a great deal of thought to government policy making? What does government policy making have to do with being a Supreme Court Justice and why should I care about the large amount of thought that's been given? Has she thought well and what does she think about law?" If that happens, stay calm and firm! And say what?
Why? She's the President's pick, an apparently highly competent and amiable person, and she's not on record with much of anything specific. Why the hostility?
By comparison, the president’s first Supreme Court nominee, Sonia Sotomayor, maintained favorables around 50% through the first three surveys following her selection, with unfavorables falling to 40%.
Maybe it's just that Obama himself has gotten less popular.
Her posture stands out because for so many women, when they sit, they cross. People tend to mimic each other's body language during a conversation, especially if they're trying to connect with one another. But even when Kagan sits across from Sen. Amy Klobuchar, who has her legs crossed at the knees, Kagan keeps both feet planted firmly on the ground. Her body language will not be bullied into conformity.
She does not cross her legs at the ankles either, the way so many older women do.
Yeah, we were taught, strictly, that a woman should cross her legs at the ankles and only at the ankles.
Instead, Kagan sits, in her sensible skirts, with her legs slightly apart, hands draped in her lap.
Here's the class picture from my kindergarten, around 1957:
Looks like the girl at the far left has Supreme Court potential. And I don't.
I think it's cute that they got nearly all the girls to cross our legs at the ankles, which was considered the only proper way for a female to cross her legs.
The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.
Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.
Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.
The country has moved to the right, so there are fewer law professors who are truly liberals.
Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.
Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.
And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.
"Prejudicial"? I know what he meant to say but... what a hilarious word!
Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."
If there's one thing you should know about Citizens United v. FEC, it's that it's not about corporate contributions to political candidates. It's about corporations engaging in their own political speech (and spending money in the process). Now, here's today's "Meet the Press" transcript. Chuck Schumer is in the middle of singing the praises of Elena Kagan.
MR. GREGORY: ... What, what does she mean for the overall direction of the court? ... Is she a liberal or is she a moderate?
SEN. SCHUMER: I--look, I think she's--she tends to be a moderate when you look at her writings. But I think that's less important. When the president called me and asked me what was the number one criteria [sic] for a nominee--this was before he chose Kagan--I said I think it should be somebody who will be in the majority of five rather than the minority of four; someone who'll have the--not only the intellect--and everyone says she's brilliant--but the force of personality, the practicality to try and create coalitions. I think a lot of us, at least on the Democratic side, were shocked by the Citizens United case, for instance. And...
MR. GREGORY: Just remind people, this was about political contributions.
No, it wasn't!
SEN. SCHUMER: This is the case that said unlimited corporate money could flow into our politics undisclosed in any way....
No, it didn't!
... and it's really--I mean, the First Amendment's important, but so is the sanctity of our political process, so that the average person has a say. And I was shocked at this.
And I am shocked at you and Gregory deliberately misleading viewers. Deliberately or ignorantly. I'm guessing deliberately. At least for Schumer. Gregory might be a dunce. I don't know.
Maybe a Kagan on the court could have persuaded a Justice Kennedy that the practical--you know, the abstract notion of First Amendment triumphs everything has a balance, and the balance is the practical effects of that. And my hope would be she would do it, and that's what I'm looking for.
What? I have this TiVo'd, so let me check. That is what he said, word for word. I think there should be another dash, after "triumphs," but it's still damned near incomprehensible. I'm guessing he meant: Justice Kennedy thinks the abstract notion of the First Amendment triumphs, but in fact, abstractions should always be balanced against real world practical effects, and if Kagan were on the Court she might persuade Kennedy to move away from abstractions and focus more on real-world effects.
That's something some people want to say about constitutional interpretation, and that's fine. Say it. But: 1. Say it clearly, and 2. Don't LIE about what the real world effects are.
The 2 have been fighting harshly in writing — see the "links mentioned" here — and now we can see them battle it out in real time:
ADDED: You can skip the first 9 minutes unless you want to hear: 1. 2 men murmur about civility or 2. Lessig's paper-shuffling that sounds like buildings being demolished.
In what is by now an oft-quoted snippet from one of her law review articles, Supreme Court nominee Elena Kagan castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a "vapid and hollow charade."...
What is less remarked upon is that in her article Kagan proposed a model for a more vigorous and candid confirmation hearing—that of Judge Robert Bork. The process worked in that instance, she argued, not because of the particular result but because the hearings "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan's description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork's legal opinions and voted accordingly. So it is with this understanding that we propose, in the spirit of democratic deliberation of which she so eloquently wrote, that Elena Kagan should be borked.
But this kind of borking is impossible unless the nominee wants it. It doesn't matter what questions the Senators come up with or how pushy and repetitive they are about asking them, the "vapid and hollow charade" can be kept up by the nominee until the clock runs out. The only reason the Bork hearings proceeded the way they did was because Bork chose to engage in legal debate with the Senators. He obviously believed in his ability to explain his ideas in a superior fashion, but he wasn't quite as smart as he needed to be about how it all looked to the people watching it on television, and he gave his enemies the ammunition they needed to bring him down.
Since Bork, all the nominees have adopted the same self-protective stance that Kagan criticized in her article. What would motivate Kagan to do anything other than that? I have 3 thoughts.
1. Kagan wrote a law review article criticizing the vapid self-protective approach to the hearings. She has a little incentive to avoid hypocrisy. A little.
2. She might really care about the criticism she once penned and want to set a new example of how a nominee can be forthright and expressive without losing, like Bork.
3. Unlike the nominees who adopted the self-protective strategy to deprive the President's opponents of the ammunition to shoot them down, Kagan could be pushed by Democratic Senators. That's what The Nation wants to see. It will be interesting if Democrats try to extract assurances of liberalism from Kagan, but why would Kagan want to give them that. Whatever might work for her with them will work against her with others — and with the American people who are consuming tidbits on TV and on line. I, for one, will review every word of the transcripts looking for interesting things to highlight. It's risky to give out any good material, but I hope she does. I don't think she will.
Bottom line: Expect another vapid and hollow charade.
