Just another day in congress watching the ponys

I have to admit, I was a bit surprised by Elena Kagan’s testimony. After watching Sonia Sotomayor’s testimony at her confirmation hearing last year and being underwhelmed by her constitutional knowledge, and a bit concerned about her candor (I posted on her hearings on on Juy 17, 2009, if you have any interest and have absolutely nothing else to do including playing video games or thumbing your eye phone) I kind of expected more of the same from the Kagan, who, as solicitor general, job is arguing at the Supreme Court of the United States on behalf of the administration or on behalf of the country, depending on the view you take).

Kagan was much more impressive than Sotomayor. She clearly has a scholarly knowledge of the law. She clearly is comfortable with give and take on an intellectual level, and, like John Roberts did a few years ago, showed she was more than a match for the senators who tried to trip her up. I am not concerned in the least that she has never sat as a judge before. She is certainly capable of serving on the court and in my opinion, more so than Sotomayor, even if Sotomayor was a judge who has issued thousands of opinions. Quality matters, not qualifications.

But the hearings were the usual sad story, more about the senators who are on the judiciary committee and their theories and biases than it was about Kagan. This is not an unusual event. It is the rule. Having listened to her answer what are politely called questions for two days, I conclude that her testimony could have been concluded in a few hours, as she merely repeated bromides about not being able to discuss certain subjects, not having come to certain conclusions, not wanting to rate previous cases or other judges, mixed in with occasional glimpses of what passes for humor in Washington.

The Irony: One of the ironies of her testimony was the existence of her own law review article written years ago where she criticized these same confirmation hearings as being pretty much a waste of time. She suggested that the nominees should be a lot more open to answering questions about their opinion and that the senators could press more too.

Not surprisingly, although I think she genuinely tried to answer questions as fully as she thought was proper, her line in the sand for what was proper was much more conservative now that she is a nominee, than it was when she was just writing about it. In fact, she readily admitted this when speaking with Senator Graham. When she refused to answer a question for Senator Kohl as to what direction she would move the court, he pointed out that she had written that this was a fair line of inquiry. She merely smiled and said, “It is a fair question,” signaling that she wasn’t giving an answer anyway. He got it, laughed, and went on. Literally, he laughed, as if this is just a farce anyway, so hah hah. No one battered her about it and they could have.

That this was going to be the case – that her uninformed article proved to be just a mental exercise devoid of experience - was a foregone conclusion. If she intends to work with eight other Supreme Court justices, there is no way she was going to criticize them. If she intended to not let herself become a pin cushion for javelin throwing senators on the other side of the ideological spectrum, she wasn’t going to give away too much as to which way she might lead the court – left or right. However, she did acknowledge to the collegial Senator Graham that “progressive” pretty much described her politics (but wouldn’t play a role in her judging – hah hah).

If she wants not to have to recuse herself in the future, she isn’t going to comment on cases that might possibly come before her either. In fact, she acknowledged that Senator Hatch had the better of the argument with her that she really shouldn’t discuss older cases, because they might come up as precedent. What’s left? General observations about the law? Well, she was up to that, and impressed everyone as knowledgeable, just like Roberts and Alito did. Naturally, they could care less – all they really cared about was whether she was on their side or not – and they already knew that – and whether they would get a chance to “prove” their philosophical and political points.

This is what we call a horse and pony show. The shame is, because it is just a show, those who have great knowledge of the law – like Roberts, Alito and Kagan, can’t be easily weeded out from the Sotomayors and the like. It is too easy for supporters to say it's just partisanship, because there is so much of it.

I’ve watched all of these nomination hearings since C-Span started recording them in the 1980s, at least in some part. Kagan’s hearing convinces me more than ever that this is a total waste of time, at least the way that it is done. Her article was right.

The plan: Here’s what I would do if we can't just get rid of the hearings totally. Obviously, these changes would need to be instituted by the Senate, as constitutionally, they get the call as to their own rules. Make them much shorter. There is no reason for a full day where the senators make opening remarks and then the nominee makes one. They can do this in an article or blog and it would get much more coverage.
 
Next, the senators should ask only serious questions to ask that might make a difference in the ultimate voting – that is – if the other side has the votes, don’t bother absent some overwhelming necessity. The only way for this to work would be for the minority side to say – okay, we don’t like him or her, but we know the other side has the votes and there is no great principle at stake. However, the trade off is the other side has to do the same thing when the tables are turned. Once someone violates it, the gloves are off and we are back to this nonsense.

If the nominee is at least relatively qualified, they certainly shouldn’t waste time asking about the law. Most of the questions seem to be just making obvious political points – the liberals think the cases that were won at the Supreme Court on conservative votes were bad cases – like Citizen Union or the recent gun case. The conservatives think the ones the liberals won (usually meaning, they got Justice Kennedy to vote with them) are bad. We get it. In fact, no matter what she says about just following the law (as if there is a law out there in a box somewhere that can be delved into), and her deference to preference, and that the worse thing you can say about a judge is that they are results oriented, when she gets to the court, she is going to do exactly what Sotomayor did and Roberts and Alito did. They all had similar hearings in the last few years and testified to their impartiality and to their just following the (so-called) law. Were I a senator, I would say this plainly – “You are going to vote with Ruth Ginsberg a lot, aren’t you? You don’t know? Want to bet? Let’s make a bet for charity right now.” Senator Sessions 'remarks on day 2 that he couldn't tell whether she'd more likely side with Justice Roberts or Justice Ginsberg was just silly. I mean, really? It sure seemed like he could tell.

A few years ago I went to a talk given by Jeffrey Segal, a professor at Stony Brook University, who was briefly my department head when I was an adjunct instructor there (although grandly called “professor” by students, no matter how many times you tell them you aren’t). He had researched the accuracy of newspaper opinion pieces on whether the Supreme Court nominees will tend to vote left or right will do so when they are confirmed. He found that the predictions were extremely accurate. This might seem obvious, but he gave empirical evidence for it. However, as a matter of common knowledge, other than justices Blackmun, Stevens and Souter, everyone else in the last 30 years + has, generally speaking, acted on the bench pretty much as we’d all suspect by virtue of the fact of who nominated them.

What should the Senate ask the nominees about? In my opinion, pretty much nothing if there aren’t real smoking guns in their personal lives or views on the constitution that are so far out of the mainstream as to be dangerous (e.g., I would refuse to apply any of the bill of rights against the states – a statement which would be accurate but considered crazy). The fact that the nominee has a conservative or liberal viewpoint should be irrelevant. In our system, they probably wouldn’t get nominated if they didn’t. No matter what they are asked by the senators, it isn’t going to affect the votes they eventually make. Promises or platitudes given at the confirmation hearing will get all the respect presidents give campaign promises later on.

If there is some character flaw that needs looking into, the sort that might get them impeached if it came out, fine. But, those will be exceedingly rare. The two attempts that come to mind – Justice Thomas being questioned about making a couple of off color jokes (really, none of the senators who pilloried him have ever done that?) and Justice Rehnquist being questioned about having bought a vacation home which contained a discriminatory covenant (which, as he pointed out, was illegal and of no effect anyway). Both, in my mind, were mere partisan attacks, and had little to do with their fitness to be a supreme court justices, or in Rehnquist’s case – chief justice. Justice Bork's hearing was different - it was not his character that was questioned but his constitutional beliefs. He too was qualified to sit on the court.

Very few people are watching these hearings anyway. There is the usual unimaginative commentary on the news, but that tends to have more to do with moments of levity or indicia of temperament by the nominee or the senators, or maybe some dramatic spin by one of them one way or the other.

Levity: As Senator Hatch noted, if they didn’t have a little give and take between the senators occasionally, that place would be boring as hell. Unfortunately, senators aren’t funny as a rule. Neither are nominees. Every once in a while someone is going to try to make a joke and everyone will laugh just because someone tried. Even worse, if someone succeeds in making a funny, the usual follow up attempts at humor fall flat. I will demonstrate one for the sole purpose of discouraging the senators from even trying in the future.

When asked what she doing one Xmas day (when the failed Xmas Day bombing occurred) she responded that like all Jews, she was at a Chinese restaurant. Kagan may be Jewish but she isn’t Groucho Marx. Sure, the Chinese food/Jew joke is a standard of the Jewish repetoire. In fact, I’m pretty sure I have actually made that joke or something like it. It’s not really that funny. But, the follow up attempts by Sen. Leahy that he saw it coming, by Senator Graham that he did too, by Leahy again that he had just learned that (about Jews and Chinese food) from Sen. Schumer and by Sen. Schumer that no other restaurants are open – they were chill inducing. If you were at a comedy club you would climb under your table and use it for cover while you hopped towards the exit.

We will be hearing from now on what a great sense of humor she has. To be fair, she does have a sense of humor and she is very personable. But, great sense of humor – only in comparison to the senators.

There was some genuinely funny stuff, like when Kagan said the worst kind of judge is results oriented – that is, they shape their rationale to reach a decision. It’s funny because, although I believe that all the Supreme Court judges are guided by their jurisprudence, they are also guided by their politics, and sometimes distinguishing between the two is impossible. I'd like to know who she thinks doesn't do that.

It was funny when a couple of senators agreed that her “sense of humor” will be needed to moderate the court – as if she can walk in and say, “Nino, take my gavel, please,” and Scalia will say, “That’s so funny – I guess the second amendment doesn’t provide an individual right to bear arms.”

The senators: Very few have done themselves a lot of credit in this process. Senator Graham was collegial and civil with her, and led her down a path he wanted on national security and abortion, although in the end, I don’t believe hereally laid a glove on her. I'd give him the award for best try though. A former JAG attorney, he impressed me with his ability to make at least small points by cajoling, giving up his own points and staying away from character. It’s probably one of the reasons he isn’t always so popular on his own side – fraternizing with the enemy.

The two had several interesting dialogues, but the first one tickled me most. He asked her if under our domestic laws, a person could be locked up indefinitely pending trial. She said no and there should not be such a case. He agreed. That interested me, because the Supreme Court has pretty much just permitted that and quite recently. In fact, in U.S. v. Comstock, the Supreme Court has permitted states to keep sexual predators who have completed their sentences indefinitely without even a new charge brought OR CONTEMPLATED against them.

Now, forget that policywise, this might reassure all of us. Who wants some crazed child rapist out there menacing the public? But, as a matter of constitutional due process, it is, of course, an insane case. While I won’t go into my usual rant here that the constitution doesn’t really work and we just pretend it does, this case perhaps solidifies that position. We must follow the law wherever it takes us, the nominees tell us, but, in reality, when they don’t like where it takes them, they just do what they want.

I appreciated Senator Specter’s approach at this hearing too. If there is anyone who isn’t beholden to either party on the committee right now, it is him, because he isn’t running for re-election anymore, having lost the primary. But, although technically a Democrat, he is one of the real independents in congress, and he went after her for not answering questions that were important to him. Nor did he waste time with the usual pleasantries that are so meaningless.

Whenever she was going through the same blather she had said earlier, he interrupted and said he was just going to move on because either she was repeating herself or wasn’t going to give him an answer. That might strike some as uncivil or testy (he is the oldest one on the committee, I believe), but he wasn’t. He was actually nice to her – he just didn’t waste time with the usual nonsense, or by being overly collegial when he had such a short time to question her.

Specter cared most about the court’s lack of deference to the legislature. This has always been a big concern to him no matter who is being confirmed. As with her testimony that she revered the military, she claimed great deference to congress. And I suspect she will give great deference to them – that is, when it supports the policies she likes. Otherwise, probably not.

The minority leader on the committee is Jeff Sessions (“ranking member”). He went after Kagan for banning the military from the normal channels of recruiting during her tenure as Dean of Harvard Law School. The exchange was a little hot and there were times he looked like he might like to reach for his gun. She won the debate in my opinion. According to her, the military was never banned from the campus, but only from recruiting through the office of career service (they used a veterans' group office - the whole thing was just another horse and pony show), because the military’s policy of “don’t ask/don’t tell” violated Harvard’s own anti-discrimination policy. She claims great respect for the military, that recruiting actually went up when she was Dean, and that when a court of appeals’ decision ruled for the military, Harvard didn’t wait for the Supreme Court to rule, but acquiesced with the military’s requirements (the Supreme Court, she noted, ruled 9-0 against Harvard later anyway). Sessions claimed that she only acquiesced because they were told they would lose hundreds of millions of dollars in aid from the government. He may be right, but it is a hard point to prove.

At the end, Sessions lost it a little, and said that her testimony was unconnected to reality – that he “knew” what she had done. He knew how active she was in opposing the military in that situation; knew that she only buckled because of the threatened loss of money to the school; and that instead of complaining to congress about a law she didn’t like, had taken it out on military recruiters who had served the country. I could only conclude he went on that tirade because he hadn’t proved anything, and had thought it was going to be easy. I’ve been there with witnesses. It’s frustrating. But, if he was right about what really happened, he certainly didn’t present it that well, and she did. I don’t know who was correct about the facts. I do know that she appeared to have, by far, the better of the argument.

In fact, when Senator Graham, whose tolerant and collegial style seems to have the most effective style in dealing with her, and Senator Hatch with a more aggressive but still avuncular style, each took a stab at it, they couldn’t make a dent in her story either. It did have the ring of truth. I think their problem was that they were afraid of getting into a “gay” thing with her (she is believed to be by some, a lesbian) and accused of being discriminatory. So, they didn’t question her about the things she said or how she felt, but only on the facts of what she and Harvard (the school had a president) did.

Although Sessions did look bad in whining a bit about it, particularly to the microphone during a break, he can feel good that he didn’t look quite as bad as Senators Biden and Schumer did during the Robert’s hearing a few years back.

Other than the back and forth with Lindsay Graham, the most interesting questioning came from Oklahoma Senator Tom Coburn, who has a strong libertarian streak. He asked her if she ever thought about whether she was more free 30 years ago than now. Strange question, but I believe he was sincere. She said no, she hadn’t. Furthermore, it was not something a judge would be thinking about in making a decision, but more something a congressperson should think about. He went on to talk about the changes in freedom since he was 20, 42 years ago, and that he feels we were much freer then.

That is a telling comment. In some ways, he is probably right, particularly if you are someone who is concerned about government ownership of business and certain erosions of the bill of rights. But, I’m not so sure many black people, or women or other so called “minorities” feel that way. They might feel that for the first time in the last forty to sixty years, they are free. In fact, it might also be that many or even most adult Americans who can remember feel more free today than in the 1960s or 1970s, despite what Senator Coburn thinks. No doubt white males have less power and prominence than they used to, and that might be why he sees less freedom than someone else. In fact, for all he or I knows, most people might feel more free today, but that may also be a product of many things, some which are more related to growth of the economy or technology.

Partisanship: Of course, the usual mindless partisanship was well in view. Liberals seem to think that conservative activism on the bench, highlighted by this year’s Citizen United case and the second amendment cases, is out of control. Conservatives have always claimed that the liberal end of the bench wants to do nothing but create law and only the heroism of the right wing on the bench prevents that. The primary target of the conservatives at this hearing seemed to be Justice Thurgood Marshall, who happens to be long dead, but is the justice for whom Kagan clerked for some 25 years ago and of whom she was quite fond. The conservatives are sure that Sonia Sotomayor had violated her promises to the senate made in her confirmation hearing in her votes on the bench already. The liberals are sure that Justice Roberts and Alito have violated their promises since they took the bench a few years ago. A few of the senators even acknowledged the partisanship in all these statements and I personally thank them for the briefs moments of sanity. It does get ridiculous after a while. In fact, Sen. Graham pointed out that an “activist judge” just seemed to be one who they disagreed with, since she didn’t want to “say” who she thought might be an activist judge.

The fact that I had the slightest hope that this would be different, well, I guess I'm just a cheery optimist. Of course, when there is another hearing – the sitting judges are not exactly spring chickens – I will watch it, despite the fact that it will be just another waste of time, because, hypocrisy and train wrecks are fascinating.