Supreme Court Nominee Kagan Grilled

by John M. Curtis
(310) 204-8700

Copyright July 2, 2010
All Rights Reserved.                                

          Facing a Fourth-of-July-style grilling, President Barack Obma’s nominee to the U.S. Supreme Court Eleana Kagan endured a withering barrage by Republicans on the Senate Judiciary Committee.  Usual and customary hazing goes with the territory for nominees of the ruling party, in this case Democrats.  Kagan, who’s served in two Democratic administrations, was lambasted by Sen. Jeff Sessions (R-Ala.) for blocking military recruiters when she was dean of Harvard Law School.  Kagan politely took exception, telling Sessions that recruiters visited with law students “every single day I was dean.”  Pushing further, Kagan withstood the salvo.  “I’m just a little taken aback by the tone of your remarks because it is unconnected to reality,” said Sessions, prompting another measured response.  “I respect and indeed I revere the military,” remarked Kagan, sidestepping the question.

            Nomination hearings have degenerated into a dog-and-pony show, where the opposition party cross-examines, seeking any chance to embarrass the nominee.  Enduring the pressure, more than disseminating real information, becomes the real test of nominee’s personal strength or character.  Taking the barrage, withstanding the attack and politely responding becomes the measure of worthiness.  Judiciary committee Republicans painted Kagan as a “liberal” or “progressive,” as if it were a criminal act.  Early in the hearing, Sen. Lindsay O. Graham (R-S.C.) informed Kagan it was OK to be a liberal, as long as she didn’t practice “judicial activism,” where judges try legislate from the bench rather.  Republicans don’t seem too concerned about conservative nominees practicing conservative “activism,” where they’re rulings advance conservative causes and agendas.

            Conservatives don’t like Kagan’s views on gun control or abortion, where she favors gun control laws and more accessibility to family planning.  Sessions’ concern about Kagan’s opposition to on-campus military recruiting, stems from his views that liberals don’t support the military.  Most conservatives characterize Barack as America’s liberal laureate, despite approving 51,000 more troops in Afghanistan and naming terrorist-busting Centcom Commander Gen. David Petraeus.  Betraying the antiwar movement, Obama has actually been most kind to the military, granting former U.S. Afghan Commander Stanley McChrystal’s request for more troops.  Naming Petraeus as McChrystal’s replacement indicates Barack has no intent of ending the war anytime before the July 2011 timetable.  Obama’s antiwar supporters haven’t appreciated his military commitments.

            Sessions tried to paint Kagan, as Harvard Law School dean, as anti-military, when, in fact, she simply followed the university anti-discrimination policy especially as it applies to gays in the military.  Because the military uses “don’t ask, don’t tell,” Kagan reflected that point of view.  “I’ve only cried once during this process,” Kagan said, after reading a ex-marine and 2008 Harvard law graduate who praised her treatment of the military in the law school.  Ending “don’t ask, don’t tell” remains a controversial subject for the public and members of the military.  While criticized as a hypocritical policy, “don’t ask, don’t tell” continues to force gays and lesbians into hiding.  Kagan, who’s rumored to be a lesbian, has strong feelings about the military continuing what already amounts to unconstitutional discrimination.  Kagan knows she needs to contain her predilections on the Supreme Court.

            Sen. John Kyl (R-Ariz.) questioned Kagan’s admiration of the Supreme Court Associate Justice Thurgood Marshall with whom she clerked in 1988, winning the nickname “shorty,” for her 5-foot-3-inch frame.  Kyl insulted Marahall as an “activist” judge, implying strongly that Kagan would be the same.  Kyl wanted to know whether Kagan was biased toward protecting the rights of the disadvantaged.  “If you confirm me, You’ll get Justice Kagan, you won’t get Justice Marshall,” letting Kyl know she thinks the “glory of the courts” is the its accessibility to all.  She rejected Kyl pigeonholing her as a “progressive in the mold” of President Barack Obama.  Calling her a “legal progressive,” Kagan rejected a label given to her by a senior White House official.  “I honestly don’t know what the label means,” said Kagan, though admitting she’s worked for two Democratic administrations. 

            Kagan’s performance at the national “dog-and-pony-show” showed she’s able to roll with the punches, showing politeness but firmness while holding her own.  She showed good common sense not taking Sen. Herb Kohl’s (R-Wis.) bait, asking her to comment about other High Court justices.  Kagan’s Teflon skills have served her well dodging the cross-examination from Republicans on the committee.  Controlling her defensiveness and ire has paid off, as she appears poised to pass the test and become the next associate justice of the U.S. Supreme Court.  Showing her comfort and sense of humor Kagan brought down the house responding to Graham.  Coming off the wall, Graham asked her, “Where were you on Christmas Day?”  Kagan responded, “Like all Jews, I was probably at a Chinese Restaurant.”  Her sense of humor has won her plaudits on both sides of the aisle.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.