The confirmation hearings for Elena Kagan's nomination to the Supreme Court begin today at 12:30 EDT. You can watch here. [Update: That link is to Senate Judiciary, and it's not loading for me. You can also watch it streamed on C-SPAN3.] Scheduled for today will be opening statements from Senators, and the first two panels, consisting of Kagan's home state Senators John Kerry and Scott Brown in Panel I, and Kagan herself in Panel II.
Republicans continue to struggle a bit for a narrative, but they're all rather predictable. Lack of experience. Hostile to the military. Political hack. Activist judge. All of which are sidelines to real issues, and easily refuted. (Check Media Matters for the ever-growing list of "myths and falsehoods" raised against her.)
Ari Melber makes an excellent point on the lack of judicial experience issue: Republicans are responsible for her lack of judicial experience. Clinton nominated her to the D.C. Circuit in 1999, Orrin Hatch refused to schedule a Judiciary Committee hearing for her. "Senate Republicans denied Kagan the chance to gain judicial experience, and now they are criticizing her for that lack of judicial experience. Add in gender and it gets worse."
Ian Millhiser catches Sessions in a flip-flop (which isn't hard to do, Sessions not being the brightest crayon in the Senate box). "Yesterday, appearing on CBS’ Face the Nation, Senate Judiciary Committee ranking member Jeff Sessions (R-AL) explained how he intends to attack Kagan. During the interview, Sessions repeated a tired concern about liberal "activist" judges, only to slam Supreme Court nominee Elena Kagan because she is not an activist." Expecting coherence out of Sessions is expecting far too much.
On the other hand, E.J. Dionne has a preview of what two of the brighter lights in the Democratic Caucus, Sens. Whitehouse and Franken, intend to do with their time questioning Kagan. Here's where we will find some substance.
They will be pushing the narrative away from the hot-button social issues that have been a distraction from the main game: the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries and the ability of the political system to protect itself against corruption....
Whitehouse, formerly his state's attorney general, was one of the most outspoken voices during Justice Sonia Sotomayor's hearings last year. He battled -- largely in vain -- against Republican efforts to turn the hearings into a rally on behalf of a definition of "judicial restraint" that would have judges approve whatever items happen to be on the conservative agenda....
This time, Whitehouse told me, he plans to focus on how conservative courts have limited plaintiffs' rights to challenge corporations before juries by restricting the right to sue and on the evidence that can be brought into play....
Franken previewed his approach in a powerful speech to the American Constitution Society this month that has made conservatives unhappy. Franken argued that the right has dominated the judicial debate by suggesting that "the Court's rulings don't matter to ordinary people" through a focus on cases involving late-term abortion, flag-burning and pornography....
"If you use a credit card, if you work, if you drink water, you're affected by the court," he said. "Roe is important, but there's this whole other area we weren't talking about."
Those narratives are important, but in the meantime, there's still exists the question of the nominee herself and let's hope that Whitehouse and Franken can get her to expand upon her judicial philosophy on the question of corporate power and corruption in the political system. Because, as the editorial board of the NYT wrote yesterday, she remains an enigma.
It’s not simply that she has kept her writings and opinions to a minimum through two decades of public life; it’s that the contradictions in the thinking she has expressed in public raise as many questions as her silence.
There is nothing wrong with being an unorthodox thinker who defies ideological categories, if indeed that describes Ms. Kagan. But members of the Judiciary Committee from both parties should press her sharply to discern which of her writings represent her true beliefs and which were professional boilerplate, made necessary by the demands of her jobs representing the legal interests of the Clinton and Obama administrations.
Let's hope that these questions become more fully illuminated in the hearings. It's encouraging to know that at least Whitehouse and Franken are going to try. But it will be up to Kagan, as well, to provide substantive answers. A peek at her narrative, in the mostly biographical opening statement, is below the fold.
Excerpts from Kagan's opening statement:
"Mr. Chairman, the law school I had the good fortune to lead has a kind of motto, spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to "those wise restraints that make us free." That phrase has always captured for me the way law, and the rule of law, matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls "the blessings of liberty" – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.
...
"The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before the Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.
...
"[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people."
...
"I’ve led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I’ve learned most is that no one has a monopoly on truth or wisdom. I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than fifty years ago – of ‘understanding before disagreeing.’
I will make no pledges this week other than this one – that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law."