The SCOTUS Confirmation Hearings game
Kagan
After 3 days of Senate Judiciary Committee confirmation hearings, Elena Kagan’s advisers are able to relax because she stuck with the game plan. She did what any self-respecting SCOTUS nominee would do in order to ensure confirmation. She gave pre-planned, vague, none-answers that left senators and on-lookers with nothing more than they had when the hearings started.
At the hearing yesterday, Senator Arlen Specter questioned Kagan about the City of Boerne v. Flores, case in which Justice Anthony Kennedy, who wrote the opinion for the majority, found that in cases involving constitutional rights, the legislation involved must show “congruence and proportionality” with the protected rights which is a stricter test than the previous “rational basis” standard.
Responding to Specter, who appeared frustrated with Kagan’s refusal to say whether she would uphold or reverse the “congruence and proportionality” standard, Kagan politely said, “You shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues,” she said.
What did Specter really expect? Did he really think Kagan would fall for the bait and say how she really felt about the new standard and face the same plight as failed nominee Bork?
The hearings are a game – a charade. The nominees are trained to not give any substantive answers to any of the questions regardless of how creatively they may be framed. The only benefit of these hearings is that they may provide some insight into the personality of the nominee. How well does Kagan handle pressure? Does Kagan have the guts and the will to balance out and even persuade the hard-core, right wing Justices who make up the majority on the Court, or would she buckle and cave-in to the ideology and politics of the likes of Justices Roberts and Alito?
Kagan appeared to be ill prepared and unsure of herself. There were too many pauses and fillers (um’s, ah’s) in her answers. Although commended for her sense of humor, I found her attempts at humor too painful to watch.
The only glimmer of hope in Kagan’s nomination is that if confirmed, there will be 3 women on the Supreme Court – the most women ever in the nation’s highest Court. Although not a majority, maybe they will find strength in numbers and their presence will be felt when dealing with issues such as immigration reform, individual gun rights, and the disparate impact of the death penalty on minorities.
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