Last night, my colleague Hannah McCrea and I wrapped up our liveblogging coverage of the confirmation hearings for Supreme Court nominee Elena Kagan. General Kagan completed her testimony yesterday evening, and the last portion of the hearings - witness testimony - was held late this afternoon, following a suspension of all hearings in observance of the late Senator Robert Byrd's lying in repose in the Senate.
As many observers have noted, Kagan's performance this week was truly a tour-de-force. Last year, I found myself disappointed with now-Justice Sotomayor's testimony, because I thought she obscured, rather than illuminated, the very real differences between progressive and conservative views on the Constitution and the law. By contrast, General Kagan did a masterful job at illuminating those differences, while also highlighting the many areas of agreement. She separated the wheat from the chaff of the conservative portrait of a model judge, showing that she will be an umpire, but not a robot, and can call balls and strikes while still bringing wisdom and good judgment back into the job of judging. Just as every judicial nominee President Bush named after John Roberts looked to Roberts' testimony for model answers about how to respond to Senate questioning, I suspect President Obama's future nominees for the rest of his presidency will be looking to Kagan's answers for guidance.
The biggest story from the Democratic Senators' side of the aisle was the unified and largely successful attempt to shift the focus of the hearings to the pro-corporate activism of the Roberts Court. The Senators put an explanation point on that message today through the testimony of some of the litigants on the losing side of this activism, including Lilly Ledbetter and Jack Gross. These witnesses helped drive home the trend - similarly demonstrated by my organization's recent statistical study of the Court's business rulings over the past five terms - that the Court's conservative majority has twisted the law to benefit special interests at the expense of hard-working Americans.
Amidst this broader narrative put forth by the Democrats, General Kagan did a terrific job of deflecting any suggestion by Republican Senators that she would join the Court with a bias against corporations. In an exchange with Senator Jon Kyl (R-AZ), she stated firmly that she viewed the job of a judge not simply to favor "the little guy," but rather to give both sides a fair shake. General Kagan explained:
One of the glorious things about courts is that they do provide [a] level playing field in all circumstances and all cases. Even when that level playing field is not provided by other branches of government, even when there is some imbalance with respect to how parties come to Congress or the President or the state houses, the obligation of courts is to provide that level playing field, to make sure that every single person gets the opportunity to come before the court and gets the opportunity to make his best case and gets a fair shake....
Everybody is entitled to fair consideration. It doesn't matter whether you are an individual or you're a corporation or you're the government... you get equal treatment by the Court.
Her comment that "the other branches of governments" do not always provide a level playing field had a special bite in a room full of Senators, who all spend enough time on the fund-raising trail to know that money talks in the political branches in Washington, a problem that will surely be exacerbated by the Court's ruling in Citizens United, which allows corporations to spend unlimited sums to support candidates of their choice. The Court's role of providing "equal justice under law" has never been more important.
Most Senators seemed openly confident (or at least, resigned to the fact) that General Kagan will soon be Justice Kagan. Based on this week's performance, she most certainly has earned it.
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