{"id":10840,"date":"2010-07-10T00:00:47","date_gmt":"2010-07-10T05:00:47","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=10840"},"modified":"2010-07-10T10:16:59","modified_gmt":"2010-07-10T15:16:59","slug":"kagan-hearing-recap","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/07\/kagan-hearing-recap\/","title":{"rendered":"Kagan Hearing Recap"},"content":{"rendered":"

\"\"<\/a>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.\u00a0 In an op ed piece in last weekend\u2019s Milwaukee Journal Sentinel<\/em>, I reviewed the arguments put forth by her critics and found them wanting.\u00a0 You can read my piece here<\/a>.<\/p>\n

My colleague Rick Esenberg had a different view of the nomination.\u00a0 You can read Rick\u2019s piece here<\/a>.<\/p>\n

It seems that the Kagan hearing failed to generate much interest.\u00a0 Given the scant written record of the nominee, there was simply not much to get excited about.\u00a0 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\u2019s agenda.\u00a0 As a law school dean, she conciliated between factions rather than advocating one particular viewpoint.\u00a0 One looks in vain for written expressions of her personal views on controversial legal issues.<\/p>\n

Even liberal interest groups that typically support democratic nominees could not generate much enthusiasm for the Kagan nomination.\u00a0 In addition, public opinion polls showed an unusually small percentage of those polled in favor of the nomination before the hearings began.\u00a0 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 \u2013 including our own Dean Joseph Kearney<\/a>.<\/p>\n

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.\u00a0 The Solicitor General came across as real and personable, and she displayed a sense of humor about herself.\u00a0 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.<\/p>\n

It seemed to me that Ms. Kagan got her \u201csea legs\u201d and began to relax during her responses to questions from Senator Herb Kohl.\u00a0 Some commentators criticize Senator Kohl\u2019s \u201cgetting to know you\u201d 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.\u00a0 In my opinion, the responses to his questions are typically more revealing than the cautious responses to the \u201cgotcha\u201d type of questions that many of the other senators on the Committee seem to prefer.\u00a0\u00a0<\/p>\n

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.\u00a0 She was left virtually alone with Senators Sessions, Graham, and Kyl, as well as the other republicans on the Committee.\u00a0 The republicans were almost uniformly horrible in their questioning.\u00a0 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.\u00a0 The contrast between a calm and bemused Kagan, on the one hand, and her hostile questioners on the other, worked completely in her favor.<\/p>\n

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).\u00a0 In the future, democrats might consider making it a regular practice not to ask any questions of nominees put forth by democratic presidents.\u00a0 It seems a surefire way to get the nominee confirmed.<\/p>\n

Republican opposition to democratic nominees continues to fall into a predictable narrative.\u00a0 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 \u201cumpire.\u201d\u00a0 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.\u00a0 Not surprisingly, republicans claim that all of the nominees to the bench put forth by democrats have values that fall outside of the mainstream.<\/p>\n

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.\u00a0 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.\u00a0 The confirmation hearings are reduced to a sideshow and all of the questions asked have ulterior motives.\u00a0<\/p>\n

This all would play out as a farce if the collateral damage caused by this narrative were not so significant.\u00a0 The narrative is intended to turn every nomination of a Supreme Court justice into a debate over where our country is headed politically.\u00a0 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.\u00a0 This undermines the public\u2019s confidence in the integrity of the Supreme Court as a non-political branch.\u00a0\u00a0\u00a0\u00a0<\/p>\n

Not surprisingly, democratic senators have seized upon their own narrative.\u00a0 Some of them, most notably Senator Al Franken, have argued that the conservative wing of the Court is beholden to corporate interests.\u00a0 As such, it plants the idea in the collective subconscious that these opinions are illegitimate as well.\u00a0 This competing narrative is similarly ill conceived, and similarly destructive to the Court\u2019s authority.\u00a0 I have certainly been a critic of some of the Court\u2019s recent decisions (for example, the Citizens United<\/em> decision<\/a>).\u00a0 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.<\/p>\n

The problem with our Supreme Court confirmation hearings does not lie with evasive answers from nominees.\u00a0 The problem with our confirmation hearings lies with senators who seek to use their questions to advance agendas unrelated to the nomination.\u00a0 Unfortunately, most people watching the hearings fail to appreciate this distinction.\u00a0 The only thing that the Supreme Court has is its legitimacy in the eyes of the public.\u00a0 If either the republicans or the democrats succeed in calling that into question, then we all lose.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 In an op ed piece in last weekend\u2019s Milwaukee Journal Sentinel, I reviewed the arguments put forth by her critics and found them wanting.\u00a0 You can read my piece 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