Elena Kagan Shared Little in Hearings; Senators Shared All They Could

During his prime-time special a few weeks ago, it took the narcissistic basketball star Lebron James about half an hour to tell the world what it already knew. Things being as windy as they are on Capitol Hill, it took the Senate Judiciary Committee more than two hours longer to do likewise on Tuesday when the panel, as expected, endorsed the Supreme Court nomination of Elena Kagan and sent it along to the floor of the Senate. The outcome, as the sportscasters still say, was never in doubt. The nominee slipped through the committee like a ghost, casting few shadows, while all around her on the panel the partisan battle raged on.

The vote essentially ends the committee's role in the matter -- for the fourth time in nearly five years, the panel approved a president's Supreme Court nominee -- and virtually ensures that many of the all-star panelists will fade back into the recesses of the Congress' ordinary course of business. That's a shame because the committee's public conversation this time around about the Constitution, and the law, and the art and science of judging, actually is one that is well worth having for much longer on a national scale. If court nominees Kagan (and, before her, Sonia Sotomayor, Samuel Alito and John Roberts, to name just a few) aren't going to be completely candid and insightful with the panel, at least it's comforting to know that the panelists are game, as always, to stake out their positions.

Indeed, between now and November, there ought to be more public debate about whether the Commerce Clause has been interpreted too broadly by the federal courts to give the federal government too much authority over commerce that isn't obviously "interstate" in nature. It was a big topic among Republicans on the committee as they begin to make the political and legal case against the new federal health-care laws. As the Legal Times reported during the hearing, "Sen. Tom Coburn (R-Okla.) asked Kagan about the [health care] law in a round-about way late today. He gave her a hypothetical: What if Congress passed a law requiring Americans to eat a certain number of fruits and vegetables? 'Do we have the power to tell people what to eat every day?' Coburn asked." Unsurprisingly, Kagan did not directly respond.

If the Republicans want to educate the country about their view of the Commerce Clause as a segue to the midterm elections, the Democrats on the panel clearly want to remind the nation about the extraordinary lengths to which they claim the current Supreme Court went to toss out federal campaign-finance reform laws. Over and over again, Democratic senators from the North (Minnesota, Sen. Al Franken), West (California, Sen. Dianne Feinstein), East (Rhode Island, Sen. Sheldon Whitehouse) and New England (Vermont, Sen. Pat Leahy) blasted the Roberts Court for its Citizens United ruling this spring. Echoing the cries of the Congress during the 1936-1937 battle over President Franklin Roosevelt's court-packing plan, these legislators over and over again decried the court's corporatist bent. Think we'll hear that political-economic argument from the White House between now and November?

As rawly partisan as those issues were spun by the politicians, I'd like to remember them, rather than the silliness which began during the hearing in late June and continued Tuesday despite the looming vote. For example, Sen. John Cornyn (R-Texas) voted "no" on Kagan because he said she had not passed the test -- met her burden of proof is how he put it -- for the job. But Sen. Lindsey Graham (R-S.C.) voted "aye" on Kagan (the lone Republican to do so) because he said she had passed the test. Two men who witnessed the same testimony from Kagan and had access to the same private material forwarded to the committee. They came to different conclusions by conveniently applying two different (and completely amorphous) "tests" to Kagan's performance and record.

Perhaps that's why the Congress is held in such low esteem by the American people and why the Supreme Court, for all its obvious biases and failings, and with or without Kagan, still offers the last best hope for justice and reason in America. Or perhaps the American people just want their public spectacles to end more quickly, like within a half-hour, so they can change the channel and move on with the rest of their lives.