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Kagan Rolls Through Hearings; For Arlen Specter, an Angry Finale

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All you really need to know about the winding down of the Senate Judiciary Committee hearings for Supreme Court nominee Elena Kagan occurred during an otherwise unremarkable session early Wednesday afternoon. It came in the form of a cri de coeur from a visibly frustrated Sen. Arlen Specter (D-Pa.), who was asking a few final questions of his 14th nominee to the high court -- a remarkable achievement. It came from an angry, frail old man who just a few months ago lost what is surely his final election and who will thus not be around on Capitol Hill the next time a president, any president, sends the name of a Supreme Court nominee to the Congress.
Having endured 29 years of Supreme Court confirmation hearings -- having been at the center of the Robert Bork fiasco in 1986 and the Clarence Thomas-Anita Hill smackdown in 1991-- Specter, 80, clearly now is fed up with bright, capable candidates who nevertheless rope-a-dope the committee, who endure the heated questions by persistently skirting meaningful answers, only to then unleash themselves and their inner legal agendas once they get their life-tenured spots on America's court of last resort.
Nominee John Roberts did this in 2005. Nominee Samuel Alito did this in 2006. Nominee Sonia Sotomayor did this in 2009 and nominee Kagan has just done it again now. It is a bipartisan problem which has infected the nation's most partisan branch of government, the Congress, and at the same time harmed the reputation of its least partisan branch, the judiciary.
"You wouldn't answer anything," Specter complained to Kagan after she refused for perhaps the 100th time over the past two days to "grade" past cases or to offer her perspective on the validity of certain legal principles and standards.
When Kagan deflected a question by saying she'd first have to read briefs for background, Specter responded: "Why do you have to read briefs on a standard" of legislative interpretation, his voice rising with anger. "This is not a specific case. This is a standard as to whether the rational basis is sufficient or whether you are going to have congruence and proportionality." The answer is: she didn't have to read any briefs. She knows precisely what standard she thinks ought to be applied. She just doesn't want to say.
"The question is where we go from here," Specter continued under the watchful eye of the nominee. "You have followed the pattern which has been invoked since [the Robert] Bork [hearing]. You quoted me in your [infamous University of Chicago] law review article" -- the one in which Kagan called these proceedings vapid and hollow -- " that some day the Senate would stand up on its hind legs. It would be my hope that we could find some place between voting no and having some sort of substantive answers." Clearly, now that the Kagan hearings are largely completed, that "place" has not yet been discovered. Kagan easily will be confirmed by the Senate even though she didn't enlighten the nation and the world with much of the meat of her judicial views and philosophies.
"There's a calculation, on the part of the nominee and her advisers, that this is the way to testify, that this is the way to help themselves," Specter said later to reporters. He was referring to the pattern whereby nominees withhold the substance of their legal views, recite bland and unremarkable principles, and then solemnly invoke the concept of judicial neutrality and objectivity when the legislators bore in on particular topics and issues.
It's a game of chicken, really, and the exasperation and pain heard in the voice of Specter tells you which side has consistently won. The Senate has not stood up on its hind legs and voted down a candidate since the Bork mess. It has not demanded and received a public accounting from these nominees. It has acquiesced -- given "consent" without being given back in return a great deal of "advice" from the candidates. And Specter ought to know. The last Supreme Court nominee whose nomination he did not vote on was the just-retired Justice John Paul Stevens in 1975.
Back to Room 216 of the Hart Senate Office Building. Without asking Kagan any more questions, Specter concluded his remarks this way: "The other issue which I discussed with you at some length . . . That is what if anything can be done about nominees who drastically abandon positions taken at the confirmation hearings . . . Television would be so good to tell the public what is going on. I would like to put into the record the questioning that I made of Chief Justice Roberts, which took 28 of my 30 minutes, and his concurring opinion in [the campaign finance reform case] Citizens United, which is really a repudiation of everything he testified to... just diametrically opposed."
The senator from Pennsylvania made his statement during a day in which the nominee offered virtually no new information or insight about her core judicial philosophies.
So here's the status of the Supreme Court judicial nomination process as we begin to look beyond the Kagan hearings. Nominees understand that the less insight they offer during the proceedings, the better chance they have of winning votes. The committee members understand that they can ask as many questions they want, and fight among themselves over political matters using the nominees as a foil, because the only thing that really matters on Capitol Hill is who has enough votes to win. Regardless of the lofty experience and legal backgrounds of the the last four Supreme Court nominees, regardless of the relative mainstream nature of their legal views, each of them will have passed through the committee to get to the high court simply because their political parties and supporters had the votes to ensure it.
It has almost always been this way. Except now it's so much more apparent and obvious. Specter first came to the Senate at a curious time in the history of Supreme Court confirmation hearings. In 1981, when he arrived, the proceedings had only recently emerged from the shadows of the Senate's ancient and closed past. But the nation had not yet experienced the shock and awe of the Bork or Thomas scandals. There was still a palpable measure of bipartisanship on Capitol Hill. There was no Rush Limbaugh or Glenn Beck. There were no online attack ads. There was no 24-hour news cycle or windy legal analysts like me. The Warren Court era was over but the Rehnquist Revolution had not yet taken place.
You can understand then, why the young senator would have had high expectations and great optimism when he sat down for the first time -- to confirm Sandra Day O'Connor, the first female Supreme Court Justice -- in 1981. He might have hoped for candor and detail from nominees. He might have expected his colleagues on the panel not to argue among themselves as they did so often this past week. He might have even hoped he could regularly help turn these hearings into a noble exercise and this committee into a respected bastion of common sense.
But it never worked out that way for the earnest former prosecutor from Pennsylvania. And so, today, sadly, as he ends his long moment in the glare of this searing light, it's no wonder if Sen. Specter looks back at his life's work in this body and feels a great deal of disgust and regret.
Filed Under: Supreme Court, Elena Kagan

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76 Comments

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tnickerson08

I think kagan is taking a page from the clinton playbook "don't ask, don't tell". The media still hasen't spoke with her brother who is a real radical, as is she. Why would anyone want someone who hasen't sat on the bench, hear an appeal of the lower court?

July 03 2010 at 1:52 PM Report abuse +5 rate up rate down Reply
Cody

I think they made the right decision on not confirming Bork. His action and statements over the years makes him out as a bitter and odd man. Some may still think he's brilliant, I think he's delusional.

July 02 2010 at 4:33 PM Report abuse -3 rate up rate down Reply
mstephen1a

Democrat or Republican, it doesn't matter. If anyone gives an answer of real substance there is always some senator there to slap them down for it. If you kick a dog every time it comes when you call, don't be surprised that it stops coming.

July 02 2010 at 4:04 PM Report abuse +4 rate up rate down Reply
Den

Senator Specter - you are right! It stinks. I watched the nominee "move all over the map" to escape giving a direct answers. As you said, Senator Specter, ""You wouldn't answer anything," She surely did not give direct answers. She refused for perhaps the 100th time over the past two days to "grade" past cases or to offer her perspective on the validity of certain legal principles and standards as the report by Andrew Cohen states in covering Senator Specter's questioning
nominee Kagan. Maybe we need to consider a change with three nominees in front of the senate which gives the question and evaluate each of their answers and then let them defend what they answered with one another. Perhaps they need to sit before the Surpreme Court Justices and have then also present questions and have the senate listen to responses. Then the senate might be better ready to vote on the best one. Sound like a plan?

July 01 2010 at 9:29 PM Report abuse +7 rate up rate down Reply
normc1066

Vote No!

July 01 2010 at 9:13 PM Report abuse +4 rate up rate down Reply
Diesel

Obama needs to appoint more liberals on this court.. Hopefully for Kennedy's seat he puts a ragin Lib up there, a nasty one. Yeah Kagan is liberal but she's not out of the mainstream. She's a brilliant lady that deserves the thumbs up.

Specter is a great Senator and will always be one. Too bad he didn't win his primary. It's nice to see some stability in Washington nowadays.

July 01 2010 at 8:39 PM Report abuse -8 rate up rate down Reply
flyingfortresb17

Everyboby seems to have a fit over the politics of the hearings. You can not be in disbelief that it is going the way it is can you? The idea of having a candiate come before the hearings was to determine fitness. As she has never been a Judge elected or appointed how do we, the people know what she is about? I will agree with the person who thinks that justices have term limits imposed form the date of confirmation to a limit of no more than 12 years. after that they could not be re-nominated or appointed for any reason. Just because your bright in one field does not mean that you have the common sense to do the work. A savant in law does not translate well in action. TERM LIMITS!!!

July 01 2010 at 6:02 PM Report abuse +4 rate up rate down Reply
1 reply to flyingfortresb17's comment
paul

Unfortunately, even after the hearings, we still don't know what she's about....

July 01 2010 at 9:10 PM Report abuse +6 rate up rate down Reply
flyingfortresb17

it is time that the confirmation hearings be done in a manner that requires answers from whatever candidate comes in to the senate hall. The waffling has got to stop with sly answers or no answers. It is the right of the American people to know who is being appointed and what they believe. Smart answers are not acceptable and denigration of any race or creed even if it is the nominee's should be treated as though she/he were discriminating against some person. When asked a question on the belief they should answer without problem. This is not a place to plead the fifth by non-answers or deferrment. As Arlen Specter stated, candor is best so the senate and the people know who is confirmed and if they will do a good job.

July 01 2010 at 5:39 PM Report abuse +10 rate up rate down Reply
no1topsobama

In these trying times of 10% un-employment and with no job prospects, politicians refusing to give an extension to collect un-employment benefits, the nation funding 2 wars ( for profits ) that we can ill afford, the horrendous devastation in the gulf which eventually will be taken care of at tax-payer's expense - eventually politicians will figure a way to have tax-payers pick up the clean-up tab as they protect thse that grease their palms -, why is the government wasting our tax-dollars on a farce and a charade with the Kagan's hearings?.
By now we all know, those appearing before these committes - since Robert's appearance - are masters at ducking pertinent questions and senators use these hearing for show-boating or to fling mud at their political opponnets - as they all make a mockery of our democracy.
Folks, in these trying times, we can no longer afford to treat our Democracy as a "spectator's sport"; get involved by demmanding your elected representative had better start using our tax-dollars to help fix some of the nation's and our people's problems or risk not getting re-elected.

July 01 2010 at 4:46 PM Report abuse +14 rate up rate down Reply
len9677

The US Supreme Court has the duty of protecting the Constitution as it was written. They do not have the right to interpret as to how it would affect us today. The Constitution is a living document but it is not the Supreme Court that is in charge of changing it to meet today's needs. That is left up to We the People in the forms of Amendments.

July 01 2010 at 3:41 PM Report abuse +6 rate up rate down Reply

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