The hearings on the nomination of Elena Kagan to be Associate Justice of the United States Supreme Court ended with a whimper rather than a bang.  In an op ed piece in last weekend’s Milwaukee Journal Sentinel, I reviewed the arguments put forth by her critics and found them wanting.  You can read my piece here.

My colleague Rick Esenberg had a different view of the nomination.  You can read Rick’s piece here.

It seems that the Kagan hearing failed to generate much interest.  Given the scant written record of the nominee, there was simply not much to get excited about.  She has a long and distinguished professional career, but her various positions as law clerk, executive branch policy advisor and Solicitor General all involve the application of her personal talents in the furtherance of someone else’s agenda.  As a law school dean, she conciliated between factions rather than advocating one particular viewpoint.  One looks in vain for written expressions of her personal views on controversial legal issues.

Even liberal interest groups that typically support democratic nominees could not generate much enthusiasm for the Kagan nomination.  In addition, public opinion polls showed an unusually small percentage of those polled in favor of the nomination before the hearings began.  Perhaps because of this lukewarm support from the left, the news media focused a great deal of attention on the broad support for the nominee among conservative legal thinkers – including our own Dean Joseph Kearney.

I confess that my own initial response to the nomination had been less than enthusiastic, but like most Americans I warmed up to Elena Kagan as I watched the hearing unfold before the Judiciary Committee.  The Solicitor General came across as real and personable, and she displayed a sense of humor about herself.  She was knowledgeable and reasonable both when discussing Supreme Court precedent and also when explaining how judges should approach the task of interpreting the Constitution.

It seemed to me that Ms. Kagan got her “sea legs” and began to relax during her responses to questions from Senator Herb Kohl.  Some commentators criticize Senator Kohl’s “getting to know you” approach to questioning Supreme Court nominees, but I think that his open ended questions gave Ms. Kagan some space to define herself and to reveal a bit of her personality.  In my opinion, the responses to his questions are typically more revealing than the cautious responses to the “gotcha” type of questions that many of the other senators on the Committee seem to prefer.  

Ms. Kagan was actually helped by the fact that the democrats almost completely ceded their time to the republicans after the end of the first round of questioning.  She was left virtually alone with Senators Sessions, Graham, and Kyl, as well as the other republicans on the Committee.  The republicans were almost uniformly horrible in their questioning.  They all played to specific interest groups among their base and failed to focus on anything that might engage the interest of the general public.  The contrast between a calm and bemused Kagan, on the one hand, and her hostile questioners on the other, worked completely in her favor.

The republican strategy behind their questions escaped me (and will be doubly perplexing if, as expected, Senator Graham ends up voting in favor of confirmation).  In the future, democrats might consider making it a regular practice not to ask any questions of nominees put forth by democratic presidents.  It seems a surefire way to get the nominee confirmed.

Republican opposition to democratic nominees continues to fall into a predictable narrative.  Republicans say that democratic nominees believe that it is proper for a Supreme Court justice to apply his/her personal values when interpreting the Constitution, as opposed to the judge merely serving as an objective “umpire.”  Confirming a nominee who holds such views is particularly dangerous when the values that a nominee plans to apply can be shown to lie outside of the mainstream.  Not surprisingly, republicans claim that all of the nominees to the bench put forth by democrats have values that fall outside of the mainstream.

Neither Sonia Sotomayor nor Elena Kagan played along with this narrative, and if the goal of the narrative is to defeat the confirmation of liberal judges it seems to be a highly ineffectual strategy.  In point of fact, the goal of the narrative is to raise money and generate turnout for the next legislative election, not to examine the qualifications of the nominee.  The confirmation hearings are reduced to a sideshow and all of the questions asked have ulterior motives. 

This all would play out as a farce if the collateral damage caused by this narrative were not so significant.  The narrative is intended to turn every nomination of a Supreme Court justice into a debate over where our country is headed politically.  It plants the idea in the collective subconscious that the opinions authored by the liberal wing of the Court (such as it is) are illegitimate.  This undermines the public’s confidence in the integrity of the Supreme Court as a non-political branch.    

Not surprisingly, democratic senators have seized upon their own narrative.  Some of them, most notably Senator Al Franken, have argued that the conservative wing of the Court is beholden to corporate interests.  As such, it plants the idea in the collective subconscious that these opinions are illegitimate as well.  This competing narrative is similarly ill conceived, and similarly destructive to the Court’s authority.  I have certainly been a critic of some of the Court’s recent decisions (for example, the Citizens United decision).  However, I criticize the conservative majority for engaging in poor reasoning, not because I believe that they are engaged in a plot to advance a corporatist agenda.

The problem with our Supreme Court confirmation hearings does not lie with evasive answers from nominees.  The problem with our confirmation hearings lies with senators who seek to use their questions to advance agendas unrelated to the nomination.  Unfortunately, most people watching the hearings fail to appreciate this distinction.  The only thing that the Supreme Court has is its legitimacy in the eyes of the public.  If either the republicans or the democrats succeed in calling that into question, then we all lose.