The confirmation hearings for Supreme Court nominee Elena Kagan got off on a bad foot yesterday. Inexplicably, the nominee spoke a lot about deference and modesty, when I worry that anyone who was genuinely modest would be eaten alive by Justice Scalia during conference. I suspect Kagan, who navigated the shark-infested ideological waters of Harvard Law School, arguably the only place in America with egos greater than the nine found on the Court, is not as modest as she claimed to be yesterday. Just so, the display was as unhelpful as it was disingenuous.
Much has been made about something Kagan wrote fifteen years ago about the vapidity of confirmation hearings. Of course, now that she is in the hot seat, it is doubtful that she will be as forthcoming as she urged others to be. No doubt Republicans will hammer her for being hypocritical. If questioned about this, she should follow the example of President George W. Bush and say, “When I was young and irresponsible, I was young and irresponsible.”
Of course, if Kagan’s performance appeared off-key, she was saved by the craziness of her GOP interrogators who spent most of their introductory remarks besmirching the reputation of Justice Thurgood Marshall, for whom Kagan clerked. These comments directed against the first black member of the Court were bizarre. Marshall, before he joined the justices, argued the landmark Brown v. Board of Education case in 1954 for the NAACP and won a unanimous decision from the bench. That event alone raises him high in the annals of the nation’s quest for justice. The attacks also made the GOP senators looks small. Have they never heard the admonition de mortuis nil nisi bonum?
The hearings will come and go quickly. Anderson Cooper will not leave the Gulf of Mexico to camp out in front of the U.S. Senate. The World Cup finals are coming. The Petraeus confirmation hearing, the Sen. Byrd funeral, July 4th weekend, all will keep the confirmation hearings for Kagan in the “sideshow” category of media coverage. Which is a shame. Kagan is getting a lifetime appointment and I certainly have plenty of questions for her! Instead, I suspect we will get more kabuki theater with her being dodgy and GOP senators being sufficiently tough to ward off a primary challenge.