The case against Kagan is a case against these hearings.
But if the senators weren't able to muster much of a case against Kagan, they did a masterly job of condemning the confirmation system. One after another, they bemoaned the empty discourse, the false promises, and the masterful evasions. Sen. Herb Kohl, D-Wisc., said of Kagan, "The substance of her answers was so general at times that it was difficult to differentiate it from any other nominee." And Sen. Dick Durbin, D-Ill., placed the blame for the empty theatricality of the last few weeks at the feet of the senators themselves: "When we criticize nominees for being evasive, we are criticizing an art form that we developed."
It is probably fitting that these dots were all connected today by Sen. Arlen Specter, D-Pa., in what will be his last turn at a Supreme Court confirmation hearing after participating in 13 of them and after having cross-examined every sitting member of the current court. Despite his "grave concerns" over Kagan's persistent nonanswers, Specter said he would vote for her for two reasons: because Thurgood Marshall was her hero and "if she follows Justice Thurgood Marshall as a model, she'll be in the right place ideologically," and also because she enthusiastically embraced a role for cameras at the Supreme Court.
Lending his standard cameras in the courtroom speech a special poignancy, Specter explained that "cameras might shed some light so the American people would know what's going on at the court," because if they knew what was really happening there, "they'd be madder than hell." Listing the court's newly activist decisions, its failure to take crucial cases, and the partisan split at its heart, Specter said the court stayed under the radar by even turning down requests for audio broadcast of oral argument. He closed with a long quote from an article in the Washington Post by Stuart Taylor explaining that of course the justices are ideological and they will keep on doing what they are doing "so long as they stop short of infuriating the public." And the public won't start getting furious at the court until they can see it on television.
It seems to me that Specter has aptly diagnosed the problem with the confirmation system. It's a media lightning rod, distracting public attention away from the real story and onto a piece of political make-believe that is as seasonal and as theatrical as the yearly Nutcracker performance at Rockefeller Center. Were the public allowed to scrutinize, criticize, and engage with the Supreme Court on a day-to-day basis, we would all be better prepared to have a serious discussion at these hearings. More important, we'd know what the real stakes are and why these nominations matter, beyond just picking nominees with really Compelling Family Narratives. Because we reserve all our umbrage, passion, chills, and spills for these very occasional and very staged hearings, we have none left over where and when it matters: At the court itself, every other day of the year.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Elena Kagan by Brendan Smialowski/Getty Images.