View Full Version : Kagan Follies!

06-30-2010, 12:41 PM
<span style="color: #FF0000"> Even if she is a liberal, she seems to be pretty sane and is certainly blessed with at least some humor. Some may be in arms over her being gay but I am not at all sure she would be the first and does not seem to be carrying a torch for the cause.

As I said with Sotomeyor, she's a liberal but Obama has that right as Bush did with his nominations. She apparently loves the law and does not seem to be so much an activist that she will bring the court any further left. As long as the right leaning justices stay healthy and the right reclaims the White House in 2012, we should not be obstructionist on this one. Of course, the other side should not be when a right leaning person is appointed.

I do like to see a little more youth in the court and, perhaps, even though this may not apply to her, more people with a more technology awareness as much of our legal decisons will be in that direction and I see both sides with weaknesses on that front.

We do, after this, of course have to be careful as we are seeing more and more women on the court and most of us don't want to see that dangerous trend.


One of the reasons everyone loves to hate on Supreme Court confirmation hearings is that they are not merely "vacuous and hollow," but also often show the nominee at his or her personal worst. Last year I complained that then-Judge Sonia Sotomayor had shrunk herself down to about a third of her usual size in order to convince Senate Republicans that they had nothing to fear from her. Justice Samuel Alito came off looking far more grumpy and much less warm and insightful than he has been on the bench in recent years. In fact, with the exception of Chief Justice John Roberts, it's hard to think of a modern nominee who came off well at his or her hearings, and I can think of a few (Clarence Thomas, Robert Bork) whose hearings turned them into characters to which they bear no personal resemblance at all.

Andthen came Kagan. One of the things that's been difficult to explain is why anyone who's ever met her—from her students to her colleagues at Harvard to her staff at the Solicitor General's office—lights up when talking about her. Whereas an American public that fell pretty hard for Roberts and Sotomayor has remained almost completely indifferent to Kagan. A C-span poll done last week reflected that only 19 percent of Americans even know Elena Kagan is the nominee to be confirmed this week, while 43 percent were able to correctly identify Sotomayor a year earlier.

One explanation for this is that Kagan never had a personal story that grabbed American voters by the heartstrings and dragged them into this hearing room. But the other explanation—the one that is increasingly evident today—is that to know Elena Kagan is to love her. This is what her boosters and students have been telling me all along: While on paper Kagan appears to be made out of, well, paper, in person she lights up a room.

This afternoon's proceedings are different from some of the most painful hearings that I have covered precisely because Kagan seems to be having some kind of a blast. It's almost impossible not to warm to her as the day progresses. For one thing, as most of the Senators note, she's hilarious. She pretty much brings the house down when—in a colloquy with Lindsey Graham—he asks her earnestly where she was on Christmas Day when the Christmas Bomber was caught. And without batting an eye she grins: "Like most Jews, I was probably in a Chinese restaurant."

Even the reporters burst into applause. When asked by Senator Herb Kohl whether she'd be prepared to allow cameras in the Supreme Court room, she quips that she's all for them because watching oral argument was an "inspiring sight." Then she thinks for a moment and adds, "But it would mean I'd have to get my hair done more often." Where did I read that the Daily Show is looking for more female correspondents?

It's not just that Kagan manages to bring the funny to the table today. What she also brings is a nominee in full: A wry, charming, witty person who seems to get better and better as the nine-plus-hour day drags on and on. Indeed, unlike some of her predecessors, who appeared before the company as if at gunpoint, Kagan gives the impression that there's no place she'd rather be than in a one-on-one seminar on the Voting Rights Act with Ben Cardin or a private tutorial on the propriety of citing foreign law with Chuck Grassley or chatting about the boundaries of the 10th Amendment with John Cornyn. Toward the very end of the afternoon, as Sen. Tom Coburn is all but shouting the words of Federalist No. 44 at her, Kagan hears him out and then counters with Marbury v. Madison. And her colloquy with Sen. Lindsey Graham is so giggly, they sound at times like two teens at a drive-in.

There's even more. Kagan seems finally to put the lie to the nonsense that judging is all balls-'n-strikes and easy child's play. This morning she tells Sen. Kyl that "there are cases where it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court." Late this afternoon she amplifies that by explaining that the idea of "robotic judging" doesn't reflect our history; that judging is hard, and that cases are close. She seems fully comfortable standing before this committee and suggesting something which no recent nominee has ever dared suggest: Supreme Court justices should be among the nine smartest people in the land, and guess what? I'm one of 'em!