Elena Kagan faced the Senate Judiciary Committee as her confirmation hearing began today. The Supreme Court nominee had so little to do throughout the afternoon that some commentators were forced to stretch to find something to say about how she handled herself:
Stray note: Kagan has been holding her back perfectly erect and maintaining a look of furrowed-brow attentiveness for over an hour now. She looks like she might crack soon.
National Review’s Daniel Foster certainly wasn’t the only one. My Facebook feed had comments like these: “BREAKING: Kagan scowling, ever so slightly” and “Kagan smiles, tilts head. This is riveting.” These remarks are so amusing because they point to the ridiculousness of the proceedings. The next Supreme Court justice, the woman of whose judicial philosophy we know so little, must sit in silence while members of the committee grandstand around her. Some other notes from Foster’s live-blogging of the hearing: “Feinstein says she was ‘extremely dismayed’ by McDonald decision of this morning” and “Sen. Russ Feingold (D., Wis.) goes off on Citizen’s United.” In other words, many senators took the hearing to confirm a new Supreme Court justice as an opportunity to complain about Supreme Court decisions they didn’t like. It gives lie to the notion that these senators are interested in confirming a lawyer who will be independent and impartial in applying the constitution.
Jeff Sessions (R., Ala.) said, “It is not a coronation, but a confirmation.” But that’s simply not true. No one has any real doubt that Kagan will replace the retiring John Paul Stevens. The Democrats have enough votes to confirm even without any Republican support—and she has some Republican support. Foster notes that Orrin Hatch and Lindsey Graham could vote for Kagan, for example. And Scott Brown, who with John Kerry introduced the Bay State professor, called Kagan “brilliant” and talked of the “impressive legal resume” that includes next to no litigating. This might not be a coronation, but it involves as much theater.
Foster reports that Tom Coburn (R., Okla.) “says he hopes Kagan will ‘set a new standard for the Senate’ and ‘really answer questions.’” But that’s not how the process had worked for some time now. As the writer for the Los Angeles Times, in the story quoted above, noted:
Kagan avoided taking any specific positions Monday on the contentious social issues on which she will likely rule, if confirmed. Nominated to become the 112th justice on the Supreme Court, she took a modest stand while promising to work impartially for justice for all.
Kagan famously described the Senate confirmation process as “a vapid and hollow charade,” and she certainly proved her point. Her remarks were so generic, many of them could have been used by anyone applying for any job anywhere.
“I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”
It’s no wonder then, that
As Sen. Dianne Feinstein (D-Calif.) noted, the Elena Kagan confirmation process has been a “snooze-fest.” Chairman Patrick J. Leahy (D-Vt.) even noted that senators Monday have not even been using the full 10 minutes allotted to them for introductory statements.
Perhaps Coburn said it best:
“It is obvious that previous hearings have not been predictive,” of performance on the court, Coburn noted. But if the nominee is not forthcoming, “Why should we do this dance?”
This drama could be a lot more interesting—and a lot more useful to the health of the republic—if committee members used George Will’s suggested questions.