THE BLOG

Hard of Hearings: The Senate Judiciary Committee's Intelligence Gap

07/01/2010 11:58 am ET | Updated May 25, 2011

Politics has always lent itself well to sports metaphors, so perhaps it is appropriate that one of the rarest and most significant events in the sphere of democratic governance has coincided this summer with its athletic equivalent in the form of the World Cup. Forget every other delusive sports comparison you may have heard: Elena Kagan's Senate confirmation hearings are an impeccable doppelganger to soccer's main event.

Within their respective fields, no two spectacles are so alike in terms of their seriousness of purpose, their national consequence, or their ability to simultaneously confuse and bore millions of perennially disinterested Americans. No matter how bewildered or sleepy we become over the course of these exalted, protracted exercises, however -- no matter how frustrated we become by the exhausting ratio of passes taken to points scored -- we know in our heart of hearts that something hugely important is playing out before our eyes.

General Kagan -- or "Miss Kagan" to those Senators who wish to (a) highlight her lack of bench-side judicial experience, (b) deny her even a nomenclatural association with the military, or (c) insinuate that she is some sort of scary unmarried homosexual-type lady -- has been objectively excellent as a nominee in the early going, to the dismay of roughly everybody not working in the West Wing. In hearings, as in soccer, clean sheets are disappointing to most viewers, but by the same token you have to admire Kagan's discipline in fielding questions thus far. She has demonstrated in no uncertain terms her remarkable poise, dexterous intelligence (what Senator Feinstein aptly termed a "wonderfully well-ordered mind") and a sense of humor that, if we are to believe the media, renders her the funniest Dean since Martin (sure, she's got more game than a Leahy or a Specter, but, really, I heard my first 'Jews go to Chinese restaurants on Christmas' joke in the womb).

If there is a liberal complaint about Kagan's performance, it's that -- like Justice Sotomayor -- she has gone out of her way not to use her bully pulpit as a nominee to articulate a compelling vision of progressive jurisprudence to the American people. If there is a conservative complaint about Kagan's performance, it's that Barack Obama is Kenyan.

Of course, the real stars of the Kagan hearings are the fascinating characters who populate the Senate Judiciary Committee, and the real story of the week is (or ought to be) the astonishing ignorance many of the senators have exhibited regarding such trivial matters as Article III of the Constitution and the history of American law. Faced with the prospect of questioning a white nominee this time around, several senators on the GOP side took it upon themselves to go after Kagan's mentor, the universally esteemed Justice Thurgood Marshall.

Attacking Justice Marshall is, in many ways, almost exactly like attacking Jackie Robinson; attacking Justice Marshall for "judicial activism" given his notorious restraint is almost exactly like attacking Jackie Robinson for failing to reach base nearly sixty percent of the time. At various points over the first two days of the hearings, Marshall was bizarrely described as "the epitome of a results-oriented judge," a "well-known activist," and a "judicial activist [whose] philosophy... concerns me" by Senators Kyl (R-AZ), Sessions (R-J.R.R. Tolkien's Mind), and Cornyn (R-TX), three alleged lawyers who aspire to be wise men but lack the necessary Franken-sense when it comes to understanding what it is that judges do.

Senator Franken (DFL-MN), technically the only professional comedian in the room, sounded significantly sharper and more knowledgeable about the law than did most of his J.D.'ed colleagues on both sides of the aisle, effortlessly parsing the intricacies of Rapanos where others futilely attempted to lasso the logic of "Boo-da-meen," decried the unabashed liberalism of one "David Stuter," or grumbled henny-pennily about the government telling Americans how many vegetables they should have for lunch each day. Not to be outdone, the senior senator from Minnesota, Amy Klobuchar (herself a potential Supreme Court nominee), saw fit to ask the Solicitor General her thoughts on the matter of Team Edward v. Team Jacob. Ladies and gentlemen, your Senate Judiciary Committee.

The truth of the matter is that these hearings are not about vampires whatsoever, but are rather about the undeadness of the Constitution in the eyes of Team SCOTUS. Is the founding document of American law a treatise entombed, or the beating heart of an ever-maturing body of jurisprudence? Are we to read this scripture through the bifocals of our Founding Fathers, or the bionic contact lenses of our shared jurisprudential experience circa 2010? To each side, the opposite philosophy is nothing more than a vehicle for 'activism' -- as Senator Graham (R-SC) put it in his classy exchange with Kagan on Wednesday, "It seems to be that an activist judge is somebody who doesn't rule the way that we like." True enough. But a serious disagreement merits a serious conversation, and as long as senators like Jon Kyl (favorite judges: McReynolds, Dredd, Book Of) are in charge of articulating one side of the debate, the number of people in the room with the intellectual firepower necessary to take part in a real discussion will remain something close to one, and these hearings will remain little more than a series of childish flops.

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