The Kagan Hearings
Entry 2: Elena Kagan's relaxed and charming performance at her confirmation hearing.
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.
And then 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!
When John Cornyn asks her if she's an "activist judge" (defined as a belief that there is "no fixed constitution and judges can invent law from whole cloth") she looks taken aback—as if she can't quite believe he's seriously going to go Glenn Beck on her. And when John Kyl goes after Thurgood Marshall for judicial activism (a trope that has thankfully all but disappeared today), she replies "Marshall's whole life was about seeing courts take seriously the claims that were generally ignored anywhere else." It's a rebuke that is all the more powerful for having been delivered in a thoughtful monotone.
And that's the trick here: Despite the one-liners and the borsht belt shtick and the toothy grin, Kagan gives the impression of being extremely serious about the law. When she's asked what she's passionate about, the law is her only answer. Yes, she does some tap dancing, and we hear some of the same dodges and weaves we always hear. (Coburn tells her she should be on Dancing With the Stars.) But she fields the senators' legal questions with gravity, sincerity, and nuance—all the while giving the impression that she is larger than life in a proceeding that renders almost every other nominee microscopic.
The complaint I have voiced about Kagan as Solicitor General over the past term is that she sometimes seemed almost too jocular, even overfamiliar with the justices. Almost as if she were already one of them and had a key to the justices' wet bar. Today she treats the senators in much the same way. She doesn't hesitate to cut them off or try to get in the last word. It works sometimes, and sometimes it must aggravate the heck out of them. But you do get a glimpse of how it is this small person (and I keep waiting for her to tell someone on the committee "Hey, I am the little guy!") has reached the professional heights she has. She has charmed and disarmed every step of the way, and it's kind of nice, in a process almost certain to produce paper doll nominees, to encounter a real, multidimensional human being.
Dahlia Lithwick writes about the courts and the law for Slate.