Jun
30

Wannabe Justice Kagan and the Theater of Evasion

I didn't get a chance to watch any of the Elena Kagan confirmation hearings yesterday. I spent the day doing lawyerly things: I went to court to argue about whether the state had violated the rights of a criminal defendant by seizing his life savings from his and his wife's bank accounts when police discovered the man's son was growing marijuana in the basement of the family home. Then I spent the evening doing prison visits to other clients. After a fourteen-hour day I was too tired to turn on the television.

It turns out I didn't miss a thing, according to the morning papers. Kagan was a lump of clay, refusing to answer all sorts of questions because the issues involved might come before her some day. There she sat interviewing for one of the top jobs in government, and all she could do was babble platitudes. In a word, she filibustered. It was a performance that inspired something far less than confidence.

There is no question that Kagan is intellectually qualified to sit as a Supreme Court justice. She was a top student at Harvard Law School. She's been a law school dean. She clerked for Justice Thurgood Marshall. She played politics in the Clinton White House. She's a smart political operative, adept at working a room and spinning policy arguments. But when it comes to candor about her views on the law, she looked pretty pathetic. She became, yesterday, everything she criticized other nominees for being in an article she wrote in 1995: a vapid wannabe.

To the president belongs the right to nominate a person to the Supreme Court. The Senate has a supporting role in the process: to advise and consent to the nominee. But this role is reduced to a charade when a candidate does what Kagan did, and claims the jurisprudential privilege of refusing to answer any question that involves an issue on which she might rule. Answering such questions would be "inappropriate," Kagan said, again and again.

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do so justifies a bipartisan filibuster of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.

I want to know, Wannabe Justice Kagan: Does the so-called war on terror justify interrogations of suspected terrorists on American soil without offering Miranda rights? I need to know just how much of the Fourth Amendment you are prepared to sacrifice in the name of a sense of security. At what point do you, Madam Wannabe Justice, recoil and say that we have given the government too much power? Tell us, truly, what you make of the silly hypothetical your Harvard coffeemate, Alan Dershowitz, cooked up about the so-called "ticking time bomb." Yes, these issues will come before you. But before you decide them, tell us how you think about them.

I want to know, Wannabe Justice Kagan, your views on Bush v. Gore and the Court's role in election disputes. Oh, don't bob and weave. There is nothing wrong about telling us what you think of a decided case. The issues are no longer hypothetical. The record is clear. What do you think? Why? Perhaps you'd care to contrast the merits of Plessy v. Ferguson and Brown v. Board of Education: Both were law once. One decision said it was fine and dandy to discriminate based on race, the other said it was abhorrent. Tell us why the law reaches different conclusions at different times.

I want to know, Wannabe Justice Kagan, what you think of gay marriage. Does the equal protection clause guarantee a right to marry to gay and lesbian men and women? Don't pretend you have not thought about it. And don't dodge the issue by claiming it is hypothetical. Comment on the case working its way to the high court now in Northern California. Surely you've read the newspapers, if not the briefs. Under what circumstances, if any, would the Fourteenth Amendment provide such a guarantee?

I want to know, Wannabe Justice Kagan, what role did you play in the decision to limit the access of military recruiters at Harvard. No equivocation, dear. Just straight talk please. And tell us, was Roe v. Wade correctly decided? You did teach law at some point, correct?

Kagan scored few points for candor yesterday. A trial lawyer behaving in such a manner before a judge, or an appellate lawyer before a panel, would be scorned for the sort of equivocation she uttered yesterday. Yet there Kagan sat, looking pleased to bob and weave and waste the time of a nation. Why not just send a mannequin to today's hearing?

If this is the best Kagan can do,the Senate would be within its bounds simply to refuse to vote on her nomination. It would be unfair to reject her outright: she is intellectually qualified. But she is saying nothing. The woman is pretending to be a cipher. The Senate can and should put an end to the theater of evasion by refusing to pass judgment on her nomination until she does something other than tap dance around the truth. Perhaps that is the only way we can put an end to the sorry spectacle of meaningless nomination hearings.
Comments (3)
Posted on June 30, 2010 at 9:21 am by William Doriss
Agreed,...with the Scalia observation above. A bri...
Agreed,...with the Scalia observation above. A brilliant observation. Kagey Kagan doing much better today. Yesterday, she was unsettled. Today, she's got her Senate-confirmation sea-legs. I'm starting to come around, without disagreeing with any of Norm's points regarding this nominee.

One must know when to hold em and when to fold em. In fact, everybody today is doing pretty good, I think. She criticized the confirmation process as a charade, and now she is demonstrating succinctly to us that it need not be. Good for her! I am applauding, but not in awe. Perhaps that's the best we can do? Or did I get it backwards?

Posted on June 30, 2010 at 8:45 am by mirriam
If she said what we want her to say, she'd never b...
If she said what we want her to say, she'd never be confirmed, no one would, not in this day and age. Today, I listened to a Senator ask about her views on Melendez-Diaz and the question related to the pragmatism of decisions, calling that particular decision unworkable because of the cost and difficulty the government must go through in order to get lab techs to court. Kagan replied that its a bright line rule, a lab report is testimonial, and therefore, there is a right to confrontation. She also pointed out that the person who wrote the decision in that case was Scalia and said "if you put a criminal defendant and the prosecutor side by side and asked Scalia to pick, you know which way he would go." She's got a point, doesn't she?

Posted on June 30, 2010 at 5:24 am by William Doriss
The Dersh Factor is alive and well, embodied in on...
The Dersh Factor is alive and well, embodied in one AliEna Kagan. Actually, that observation demeans the good professor Dershowitz, as I believe under similar circumstances he would display more kandor than Cagey Cagan. He cannot help himself. Dersh being Dersh; something like Manny being Manny. It's a Boston thing, I suppose. How these people wind up at Harvaaad is beyond me?

Yea, AliEna was pretty pathetic yesterday. I felt sorry for her. How ironic that she herself called the confirmation process a 'charade' in 1995, and now she is participating in a continuation of the charade she herself criticized (correctly). Wonders never cease in Washington AC/DC or on Capitol Hill. Didn't we get enough of this just a year ago?

Arlen Specter asked her about the declining case load of the S.C. over time. Cagey Cagan was unable to answer that one as well, while noting that it was in fact the case.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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