The case against Kagan is a case against these hearings.

The case against Kagan is a case against these hearings.

The case against Kagan is a case against these hearings.

The law, lawyers, and the court.
July 20 2010 7:42 PM

Closing Arguments

The case against Kagan is a case against these hearings.

U.S. Supreme Court nominee Elena Kagan (center). Click image to expand.
Elena Kagan (in blue shirt)

Republicans on the Senate Judiciary Committee had the opportunity to offer closing arguments against Elena Kagan this morning. They had, as Sen. Lindsey Graham, R-S.C., put it, "a hundred reasons" to vote no—at least from an ideological standpoint. Over the last few days, the rhetorical storm clouds gathering over Kagan have ranged from the Washington Times'utter certainty that she has plans to impose Sharia law from the bench (and they have the illustration of Kagan in a spooky turban to prove it!) to the overheated claims that she"manipulated medical findings" to support "partial-birth abortion." The NRA wants you to believe she wants to wrench your gun from your cold, dead hands. And constitutional junkies of every stripe had been led to believe that today's vote would be a high-minded referendum on Kagan, the Commerce Clause, and the future of health care reform. Given all these reasons to vote no, the case presented against Kagan today was awfully tepid and awfully familiar.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Senate Republicans offered up virtually nothing about Sharia-Kagan, or Partial Birth Abortion Kagan, or Commerce Clause Kagan this morning, retreating instead to the charges they first leveled in their opening statements three weeks ago: Kagan is a politician not a judge, Kagan is a liberal, and Kagan hates the military.

Kagan is not, said ranking Republican Jeff Sessions, R-Ala., a "lawyer's lawyer"; instead, she chose "involvement in politics." Her entire testimony, he claimed, was "political spin." But while both Sessions and John Kyl, R-Ariz., expended a lot of energy disputing Kagan's lawyerly abilities, they each devoted the bulk of their comments to refuting what Kyl would describe as her "clever lawyering" as solicitor general.


Not quite gone from today's proceedings were the full-frontal attacks on Thurgood Marshall. Both Kyl and Chuck Grassley, R-Iowa, saw fit to take one last whack at that piñata. (Sen. Orrin Hatch, R-Utah, merely objected vaguely to her admiration for "certain judges.")

There was some more yipping about Kagan's treatment of military recruiters at Harvard that deflated very quickly when Lindsey Graham, the committee's undisputed military authority, observed that "at the end of the day," military recruitment actually increased at Harvard, despite her policy. He added: "If I believed she had animosity in her heart about those who wear the uniform I would easily vote no. I don't believe that." Graham added that it was clear she was a loyal American who revered the military as much as anyone does and that the Solomon Amendment scuffle while she was dean of the law school "says more about Harvard than it says about the military."

Graham, only fueling the wrath of the right, went on to explain that nobody worked harder to defeat Obama than he did—with the possible exception of John McCain—"but we lost, President Obama won. The Constitution in my view puts a requirement on me not to replace my judgment for his." Reprising a line he used last year at the Sonia Sotomayor vote and again in his opening statements, Graham explained that "elections have consequences." Then he made it plain that the Senate needs to separate their political responsibilities to their constituents from their duty to the constitution. He said that, like his colleagues, he must balance the consequences of Obama's election in 2008 against the consequences for his own re-election campaign: "How do you stay within keeping your job and honoring the fact that the people have spoken?" he asked. "How do you balance a past election and your own election coming up?" (A Graham consultant told the Post this afternoon that the senator needn't worry about 2014: "He's a thinking person's conservative. I expect him to do well among voters with IQ's in triple digits.")