The case against Kagan is a case against these hearings.
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.
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.")
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.