OPINION - The senatorial process of vetting Supreme Court candidates is about as close to Kabuki theater as we get in America. Elena Kagan did the ritual song-and-dance well. If the purpose was for the American public to learn something about the candidate, we did: She is smart, adept, and even funny.
When Lindsey Graham of South Carolina asked where she was on Christmas Day, Ms. Kagan replied, "You know, like all Jews, I was probably at a Chinese restaurant."
Jeff Sessions did a nifty turn as the villain Republican interrogator, giving new meaning to "ranking member," but no one can really ever rival Arlen Specter, who, looking at the exit door rapidly approaching, apparently seems to have packed his trunk up and returned it to the GOP during these hearings. Specter combines repeated interruptions of the question answered with a pejorative pedagogy that would turn all but the heartiest of candidates, like Kagan, into verbal ash and cinders.
Ms. Kagan rightly portrayed past hearings as "a vapid and hollow charade" some years ago, but she has a job worthy of the IED disposal team in "The Hurt Locker" in disarming the few political land mines which the GOP has tried to make detonate underneath her candidacy.
Even Franco Zeffrelli, legendary Metropolitan Opera director, could not have staged the fight scenes so well.
The heroine, Ms. Kagan, occasionally took a verbal machete to the thickets of Senatorial rambling, the endless bombastic bombardment and sardonic soliloquy on legal subjects great and small by Senators impressed with the sound of their own voices playing to the television cameras and microphones.
Unlike many of the previous nominees, she actually tried to answer the points of law, without tipping her hand as to what she might do in future, and provide some framework as to what process she would follow without getting into those nattering specifics.
Like many good Kabuki plays, the villains become trapped in their own clever webs. Such was the case for Arizona's Jon Kyl, who tried to play the "activist judge" card repeatedly over Kagan's association with legendary supreme court justice Thurgood Marshall.
Dana Milbank writes:
"Justice Marshall's judicial philosophy," said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, "is not what I would consider to be mainstream." Kyl -- the lone member of the panel in shirtsleeves for the big event -- was ready for a scrap. Marshall "might be the epitome of a results-oriented judge," he said.
Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a "well-known activist." Sen. Chuck Grassley (R-Iowa) said Marshall's legal view "does not comport with the proper role of a judge or judicial method." Sen. John Cornyn (R-Tex.) pronounced Marshall "a judicial activist" with a "judicial philosophy that concerns me."
As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice's offenses: "Justice Marshall endorsed 'judicial activism,' supported abortion rights, and believed the death penalty was unconstitutional."
Of course, the same litmus test, applied to Supreme Court justices like Scalia could produce an equal, if not greater level of "activism." Apparently it's only activism if the judge in question is forming law that disagrees with the GOP political platform.
Kyl kept at her, raising the famous Marshall quote that his judicial philosophy was to "do what you think is right and let the law catch up."
"I actually never heard Justice Marshall say that," Kagan replied curtly, "but rather saw it attributed to a clerk."
Kyl, the No. 2 Republican in the Senate, pressed the point that the Republicans had been harping on, that "Justice Marshall's judicial philosophy is not what I would consider to be mainstream."
Kagan's reply was measured, meaty, and humbling.
"Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow segregation," she told Kyl. "And you can kind of see why he would work as hard as he can to make the law 'catch up.'"
By calling out Marshall, and calling him out of the mainstream Kyl and the GOP senators were effectively telling voters that their party believes that Jim Crow era politics were a good thing. Any African-American who endorses a Republican might want to remember that one come August and November.
Pundits prefaced Kagan's confirmation hearings by saying that her experience would be on trial here.
It was, but not in the way that the talking heads prognosticated. Kagan clearly showed that she has worked around the Supreme Court and D.C. politics long enough to know how the game is played. She is not only well educated in the law; She is fluent in the process, and the gamesmanship of the Hill.
Ms Kagan came to win, and win with a smile on her face. She made herself look smart, and the Obama White House for the pick. She also managed to make a lot of self-righteous Republicans dangle from the hooks they had put out there to get a "gotcha" moment.
The Alaskan beauty queen from Hell could take a few lessons from Ms. Kagan on the way to answer questions, particularly the ones that you don't want to answer. She was quite adept at avoiding specific answers by deflecting the question posed to her as a matter of the decided case law passed by the Supreme Court already out there. It's easy to agree to uphold the precedents that you will have to uphold when you sit on the bench.
Her confirmation according to Committee chairman Patrick Leahy (D-VT) is all but certain.
The balance she will bring to the Supreme Court is more profound than her being a woman, or her politics leaning center to Left.
She will bring a strong centrist voice to her office that has long been missing, and some well written, opinions to the high court.
Kagan has demonstrated herself to be a great thinker, an adept and agile mind, something badly needed on a court that includes intellectual lightweights like Clarence Thomas, and intellectually dishonest legal minds like John Roberts and Antonin Scalia.
The question has been asked to exhaustion: Should there even be hearings like these? I say yes. Even beyond all of the blah-blah-blah of senators posturing more than posing questions of substance, the country gets one of the few looks at its Supreme Court justices before they don the robes and enter the more cloistered world of the high court.
Plus it is fun watching Kagan mop the floors with these big-shots who love to hear the sound of their own voice.
My shiny two.
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