The dodgy Miss Kagan

By Dana Milbank
Wednesday, June 30, 2010; A02

Fifteen years ago, Elena Kagan wrote a law review article calling the Supreme Court confirmation process "a vapid and hollow charade" that takes on "an air of vacuity and farce." Instead of a quality discussion, she wrote, nominees offer "repetition of platitudes" and "personal anecdotes."

On Tuesday, fate cast Kagan as the lead actor in the very farce she correctly described. And, to nobody's surprise, she played the role according to the standard script: with platitudes, personal anecdotes and an air of vacuity.

"Please, tell us, why do you want to serve on the Supreme Court?" asked Sen. Herb Kohl (D-Wis.).

"It's an opportunity to serve this country in a way that, you know, fits with whatever talents I might have," she replied.

"What are the things you feel most passionate about?" he asked.

"I do think that what motivates me primarily is the opportunity to safeguard the rule of law," the nominee returned.

Kohl desperately pursued an answer. "I'm sure you're a woman of passion," he coaxed the nominee. "Where are your passions?"

Some in the audience perked up. Would she bring up her fondness for softball?

"I think I will try to evaluate every case fairly and impartially," the nominee answered.

Her passion, evidently, is for platitude.

Actually, her passion is to win confirmation after this week's hearings. And the surest path to that is to do exactly what she complained about previous nominees doing: being vapid.

She responded in a cagey manner even when Sen. Lindsey Graham (R-S.C.) asked the most innocent of questions: "Where were you at on Christmas Day?"

"Senator Graham, that is an undecided legal issue," Kagan replied, "which -- the -- well, I suppose I should ask exactly what you mean by that."

"I just asked you where you were at on Christmas," the senator said.

Kagan recovered. "Like all Jews, I was probably at a Chinese restaurant," she said.

Finally, her answer satisfied a senator. "That's what Hanukkah and Christmas is all about," Graham said.

Early in the day, Kagan disavowed her article on the vacuous confirmation process. "I did have the balance a little bit off," she said. "I skewed it too much toward saying that answering is appropriate."

Kohl wasn't buying that. "Back in that 1995 article, you wrote that one of the most important inquiries for any nominee . . . is to, quote, 'inquire as to the direction in which he or she would move the institution.' In what direction would you move the court?"

"All I can say," Kagan replied, "is that I will try to decide each case that comes before me as fairly and objectively as I can."

"But you, in 1995, 'It is a fair question to ask a nominee in what direction' -- this is your quote -- 'would you move the court?' " "Well, it might be a fair question," Kagan pointed out.

"All right, let's move on," the defeated interrogator said. "Can you tell us the names of a few current justices . . . with whom you most identify?"

"I think it would be just a bad idea for me to talk about current justices," she answered.

"My oh my oh my," Kohl marveled.

Democrats were amused by her newfound reticence; Republicans seethed. Sen. Jeff Sessions (Ala.) asked if she is "a progressive in the mold of Obama."

"I'm not quite sure how I would characterize my politics," she demurred.

"Do you agree with the characterization that you're a legal progressive?"

"I honestly don't know what that label means."

"Do you think that is a fair characterization of your views?"

"I think that people should be allowed to label themselves."

The only label Kagan seemed to embrace was guarded. When Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah) had an argument about Hatch's line of questioning, the Republican apologized to the nominee: "We have to have a little back-and-forth every once in a while or this place would be boring as hell."

"It gets the spotlight off me," Kagan said. "So I'm all for it. Go right ahead."

Sen. Dianne Feinstein (D-Calif.) tried a gentler tack. "I want to just have a little heart-to-heart talk with you, if I might," she proposed.

"Just you and me?" Kagan interrupted.

"Don't anybody in the room listen," Leahy warned. It was no use. "You don't want to tell us what your own personal belief is," Sen. Chuck Grassley (R-Iowa) complained. "I don't think I'm making too much progress," Sen. Arlen Specter (D-Pa.) groused.

Well, not all questions -- just the ones about legal issues. Kagan was happy to volunteer her view to Specter that court proceedings should be televised. "It means I'd have to get my hair done more often, Senator Specter," she said.

Graham, who teased from Kagan the all-important Chinese-restaurant-on-Christmas answer, asked her to "go back in time" to the days when she criticized the confirmation process. Asked Graham: "Are we improving or going backward?"

"You've been exercising your constitutional responsibilities extremely well," she replied.

"So it's all those other guys that suck, not us," Graham said.

Cue the Gilbert and Sullivan.

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