The Old Dog And Pony Show
July 6, 2010 by Ben Crystal
"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."—Supreme Court nominee Elena Kagan, University of Chicago Law Review, 1995.
“What a waste of time.”—My next door neighbor’s mother, expressing her disgust at the non-event Kagan’s confirmation hearings became, Thursday afternoon.
Kagan—at least the 1995 edition—is correct. My next door neighbor’s mother is not. But I will elaborate, if only to keep Mrs. <redacted by author>’s enormous husband from strolling over with a brick.
Nearly five years ago, a Findlaw poll stated: “The percentage of Americans who can name all nine current Supreme Court justices, statistically speaking, is zero.” Imagine my shock in learning—from a mathematical standpoint, at least—I didn’t exist.
But I do exist, much to the consternation of more than a few. And I believe—nay—DEMAND a thorough vetting of anyone who’s going to spend the next couple of decades standing this close to my fundamentally inalienable rights. To be fair—neither my next door neighbor’s mom nor her giganto-spouse are in any way derelict in their civic duty; they’re simply revolted by last week’s C-SPAN circus.
Elena Kagan v.2010 is dramatically distant from Elena Kagan v.1995. During last week’s hearings she avoided definitive statements with the kind of agility most television viewers employ to avoid watching Rachel Maddow. She exasperated lame-duck Senator Arlen Specter (R to D-Pa.) to the point that he looked even more basset-houndish than usual. She sidestepped interrogatives regarding her support for partial birth abortion, a procedure right at home in a Freddy Krueger film.
Actually, her confirmation hearings had a rather pungent “air of vacuity and farce.”
Kagan demurred when questioned by Senator Tom Coburn (R-Okla.) regarding her interpretation of congressional authority under the Commerce Clause (Article I, Section 8, Clause 3):
Coburn: If I wanted to sponsor a bill, and it said Americans have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?
Kagan: Sounds like a dumb law… But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.
When Coburn noted that ObamaCare could make such a nightmarish hypothetical a hideous reality, Kagan responded—over the course of a 500 WORD ANSWER (yes, I counted)—that the responsibility to rectify Congressional and Executive breaches of constitutional protections rested with Congress and the Executive branch.
Ms. Kagan—such corrections are positively within the purview of you and your eight future colleagues.
I am troubled by delivering a 4th grade civics lesson to a woman purported to be one of the foremost legal minds of her generation. The judiciary serves as the final line of defense against encroachment upon our civil liberties; whether said encroachment requires a McDonald v Chicago or a Brown v Board of Education.
If Elena Kagan doesn’t understand the basic function of the Federal judiciary, then she is a poor choice indeed to join their ranks. Sadly, because most Americans either don’t know or don’t care—she’s already browsing Wal-Mart’s Justice-on-the-Go collection.
The purpose of senate confirmation hearings is to discover the nature of those who aspire to inhabit the halls of unelected authority. The fact that most of our senators are jacklegs does not relieve the citizenry of OUR responsibility to look over THEIR shoulders. Sometimes, we get to observe Tom Coburn pressing Elena Kagan for a definitive answer to… anything. Sometimes—as the goodly folk of Minnesota found out last week—we get to discover our junior senator ignoring the proceedings while producing an impressive pen-and-ink sketch of Senator Jeff Sessions (R-Ala.).
Elena Kagan is likely to be more Ruth Bader Ginsburg than Antonin Scalia. The good news: replacing Stevens with Kagan is not likely to effect a sea change on the Supreme Court. The bad news: Kagan is hardly the last salvo Obama will fire at our personal liberties. We must overcome our revulsion at Washington’s clownish antics. The agenda which produces nominees like Elena Kagan is no laughing matter.
Remember that in November, and again in 2012.