Why are these called “hearings”, given how little substance and inquiry they’ve had for decades….in the words of the nominee herself, once upon a more candid time.
I linked to this below, but start with it to frame the points to follow.
“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”
“Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues. Senators have not done so since the hearings on the nomination of Judge Bork. They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”
Kagan even had mild criticism for the confirmation testimony of three of the justices she now wants to work with: Ginsburg, Stephen Breyer and Clarence Thomas.
Of Ginsburg’s and Breyer’s testimony before the Judiciary Committee, she wrote, “Most of the testimony disclosed only the insignificant and the obvious…
Kagan did note that Ginsburg and Breyer “were playing the game in full accordance with a set of rules that others had established before them. … And finally, I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence.”
What to say…
Working backwards from that last statement, Kagan did take that route and played the part very well. However, some senators did try to engage the nominee in meaningful discussions of legal issues, both to properly evaluate the nominee and appropriately educate the public. And some did try to insist the nominee reveal what kind of justice she would make by prompting her to disclose her views on important legal issues. But she learned the ritual dance and played the game well. And so it pretty much winds up quickly and with much of the Senate and media duly charmed.
But before anyone goes waltzing off into private chambers just yet, note that at least a couple of things emerged from the final day of questioning that should also go down for posterity.
On that issue of the partial-birth abortion ban that Kagan substantively fought from within the Clinton administration, Sen. Orrin Hatch’s questioning elicited an important response.
As a Republican-controlled Congress in the 1990s debated whether to ban the controversial procedure, Kagan wrote a memo in which she expressed concern about a statement that the American Congress of Obstetricians and Gynecologist was going to release that revealed its panel of experts found no circumstances in which the procedure was the only option for saving the life of the woman.
“This, of course, would be a disaster,” she wrote.
That’s a huge political statement.
Kagan revised the language so the final statement in 1997 said that the partial-birth abortion “may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman.”
Sen. Orrin Hatch, R-Utah, told Kagan on Wednesday “that’s a very different spin and obviously a more politically useful spin.”
“Your language played an enormous role in both legal and political fights over banning partial-birth abortion,” he said. “The political objective of keeping partial-birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry and that they had concluded.”
This will be revisited, especially when she sits on the bench with Justice Anthony Kennedy, who wrote so graphically and decisively about the truth of partial birth abortion in the Supreme Court’s Carhart decision.
Elena Kagan’s role and ACOG’s role in providing political cover for the gruesome act of infanticide in partial birth abortion will and must be discussed in full.
But it got on the record in these hearings, and so did another matter, raised creatively in questioning by Sen. Tom Coburn:
Can the government, he wondered, pass a law forcing Americans to eat fruits and vegetables?
To Kagan, at first blush, the question must have seemed absurd, maybe even a joke. “It sounds like a dumb law,” she replied off the cuff. Then, realizing Coburn was serious, she segued into sort of the windy, contextual, cautious analysis that she has employed to answer most of the questions asked of her over the last two days.
But she had fallen into Coburn’s trap by answering more like the law professor she is than by simply responding like most people would. She never just said: “Of course it can’t.”
Within hours, a video detailing the exchange was atop the Drudge Report website, hundreds of thousands had viewed it on YouTube, and conservatives were having a field day. Her equivocation fit ideally with the narrative Republicans are trying to fashion during these hearings — a story of a federal government out of control and a Congress running amok.
That story is not a narrative fashioned by any political operatives. It’s the de facto reality brought into relief only by a member of Congress weary of vacuity and farce, who applied critical thinking skills with a bit of clever inquiry. That’s one thing Kagan appeared to have not anticipated.