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Some Lessons Learned In Dean Kagan's Senate Classroom

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The hearings to confirm Elena Kagan as the next associate justice of the Supreme Court are over and the conclusion is all but inevitable: starting on the first Monday in October, there will be three women sitting in the big leather chairs in the Court's hallowed chamber, dispensing justice and shaping the contours of American law and life. As Barack Obama once said, "If you're walking down the right path and you're willing to keep walking, eventually you'll make progress." Elena Kagan is taking us one more step down that path.

So, what did we learn from the hearing, other than the obvious: Elena Kagan is an impressive scholar and thoroughly charming person, and in the words of Thurgood Marshall, Jr., "scary smart"?

We learned that Republicans who used to rail against "legislating from the bench" have suddenly reversed course and are practically begging the courts to undo Congressional actions. When courts rule state prohibitions on gay marriage are unconstitutional, conservatives decry the horrors of unelected judges undoing the will of the people, but if they could find a few judges to rule the health care law to be unconstitutional -- which was just passed by the ostensibly elected-by-the-people Congress -- that would be just grand.

We learned that the gods of Irony have a field day at these kinds of events. While Republicans expressed consternation about Solicitor General Kagan's lack of a judicial record, she needed only glance upward from her seat to see Orrin Hatch, the man who, as chairman of the Judiciary Committee, refused to even give her a hearing when she was appointed by President Clinton to a seat on the federal bench. Hatch's actions on behalf of the Republicans back in 1999 denied her the opportunity to get judicial experience and develop the record so lusted after by ... the Republicans. And there was Jeff Sessions, who was himself turned down for a seat on a federal district court largely because of his troubling civil rights record complaining that one of Elena Kagan's heroes was Supreme Court Justice Thurgood Marshall.

We learned that Al Franken is a pretty good artist, but he's a better senator. Franken spelled out in wonderfully lucid terms how the current Supreme Court has become the Corporate Court, repeatedly twisting the law to advance a political agenda favorable to the interests of powerful special interests. Not surprisingly, he couldn't get Kagan to agree to criticize her future co-workers, but the message was sent that there are many deeply concerned people, Alliance for Justice included, who hope that when she takes her seat she will assertively stand up for fairness and the rights of all Americans, and not just CEOs.

We learned that unlike John Roberts and his precedent-trashing conservative quintet, Elena Kagan has a significantly more restrained view of her role. When she said, "...the Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one -- properly deferential to the decisions of the American people and their elected representatives," she was propounding a view strongly at odds with the overreaching conservative majority she will face beginning in October.

We learned that Thurgood Marshall is still getting under the skins of conservatives, even 17 years after his death. The whole idea that someone might employ the legal system to stand up for the powerless, the dispossessed, the poor, the despised, and the discriminated-against, continues to rankle people whose pinched idea of justice consists of protecting corporations and using the law to impose their idea of morality on women, gays, minorities, and anyone who sits outside their cultural comfort zone.

And, finally, we learned that Elena Kagan is going to be an excellent justice of the Supreme Court. I don't think we're always going to agree with everything she does (her apparent inclinations on executive power concern us), but after watching her in action this week, we now know the Court will be getting someone who is committed to fundamental principles of fairness and who has a solid grasp of how the decisions of the Supreme Court affect the lives of ordinary Americans. When she said, "the obligation of the courts is to provide that level playing field, to make sure that every single person gets the opportunity to come before the Court; gets the opportunity to make his best case, and gets a fair shake," she was already well ahead of the current conservative majority, which has willfully abandoned those principles. We are hopeful she can use her vaunted abilities of persuasion and consensus-building to convince her new colleagues that her view of the law is the one our nation expects -- and deserves.