On A No-Drama Day, A Debate Actually Breaks Out
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At the opening of her Supreme Court confirmation hearings Monday, Elena Kagan's own words continued to come back to haunt, or -- depending on one's viewpoint -- encourage her.
Remember, she was reminded by one senator after another, when you wrote in a book review 15 years ago that Supreme Court confirmation hearings were exercises in "vacuity and farce"?
Her frank assessment, widely shared, proved irresistible Monday as she sat before the 19 members of the Senate Judiciary Committee who will decide her fate.
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And Republican Sen. Orrin Hatch of Utah -- a former committee chairman himself -- smilingly predicted that Kagan would continue to "hear a lot about" her words in days to come.
Seeking A Safe Passage
But will she prove an exception to the rule and, under direct questioning Tuesday, abandon the carefully parsed answers of those confirmed before her? Or at least the justices confirmed since 1987, when Robert Bork famously engaged committee members in a full-on constitutional discussion.
In the low-key ramp-up to her appearance before the committee, Kagan seemed unlikely to depart from the hearings-as-usual script she had so harshly criticized.
And legal scholars like Michal Belknap of the University of California, San Diego found the notion far-fetched for anyone seeking safe passage to confirmation: "I'd like to hear her thoughts on certain important constitutional issues," he said before the hearings opened, "but there's about zero chance we'll get that."
Yet on a day when the death of Senate stalwart Robert Byrd and a Supreme Court decision on guns stole the news cycle, a stark and specific debate over the direction of the current court broke out in the cavernous Hart Senate Office Building's hearing room.
And the debate -- waged in pointed statements by the committee's 12 Democrats and seven Republicans -- suggested that Kagan may be unable to avoid the more active engagement that she herself advocated.
"This is a unique hearing," said Democratic Sen. Arlen Specter of Pennsylvania, a longtime committee member who for most of his years served as a Republican.
"The court has become an ideological battleground," said Specter, who lost his party's nomination for re-election and is serving his last months in the Senate. "And the activism is on both sides."
The Power Of Politics
That was underscored just hours before Kagan's hearing opened, by a controversial 5-4 Supreme Court decision that expands the individual right to bear arms to state and local gun laws.
That decision and another recent 5-4 ruling that lifted the ban on corporate and union spending on federal elections, a case argued and lost by Kagan in her role as solicitor general, will be two of the pillars on which Democrats will attempt to build their case this week.
The case? Not so much to sell Kagan, whose confirmation is expected, but to convince Americans following the process that the current court, led by Chief Justice John Roberts, has embarked on "radical change," in the words of committee member Dianne Feinstein, a California Democrat.
And Republicans, also looking ahead to November elections, will attempt to paint Kagan as a "judicial activist" herself, not the moderate, mainstream legal thinker her supporters portray.
Ranking committee member Jeff Sessions, an Alabama Republican, laid out with surgical efficiency the case his party will pursue against Kagan: her lack of judicial experience; her political work in the Clinton administration; a senior college thesis she wrote about socialism; and "activist" positions on guns, abortion, national security, military recruiting and First Amendment rights.
Roberts, during his own hearings five years ago, said he viewed the role of a high court justice as akin to an umpire, dispassionately calling balls and strikes.
Those comments were repeatedly invoked derisively by Democrats, who say the umpire has become a conservative crusader. Democratic Sen. Richard Durbin of Illinois, his voice dripping with sarcasm, said that for Republicans accusing Democrats of judicial activism, "I have two words for you: Citizens United," the shorthand name of the campaign-finance case.
In her platitudinous opening statement, Kagan understandably stayed away from her personal feelings about confirmation hearings and made no promises about how forthcoming she'll be in coming days.
Republican Sen. Lindsey Graham of South Carolina told Kagan she was a nominee he would have expected from President Obama and noted she would not change the ideological balance of the court.
He said that although she clearly meets the qualifications test, he wants to be convinced that she will "park" her liberalism when she sits on the high court.
"You're the best example of why hearings should be probative and meaningful," Graham said.
In less than 24 hours, it will be clear whether Kagan, whose path to the nominee's chair has been marked by a deliberate carefulness, will take the path of engagement last trod, enthusiastically, by Judge Robert Bork.
And we all know what happened to him.