Meaningful dialogue between a Republican and Obama's nominee

Thursday, July 1, 2010

DURING MUCH OF her confirmation hearing this week, Elena Kagan has stuck to the script adopted by post-Robert Bork nominees to the Supreme Court, providing answers that are so general as to be meaningless. When asked about the Second Amendment, she noted that the Supreme Court had recognized an individual right to keep and bear arms -- the same answer given by then-nominee Sonia Sotomayor, who voted this week against such an interpretation of the Constitution. Ms. Kagan asserted the importance of judicial "modesty" and "humility" in respecting congressional pronouncements -- echoing the words of nominee John G. Roberts Jr., for whom, as, chief justice, deference has not extended to congressionally mandated campaign finance laws.

But there have been moments of clarity that demonstrated how such hearings could be more useful. It is no coincidence that one such revelatory moment came during a cordial and substantive exchange with South Carolina Republican Lindsey O. Graham, who appears to be the only Republican on the Judiciary Committee with an open mind about the nominee. His questions were less about scoring a "gotcha" than they were about eliciting honest answers.

And he got them. Ms. Kagan, who had been pressed by others to categorize her legal approach, acknowledged in response to Mr. Graham that her "political views are generally progressive."

"It would be okay, from your point of view, if a conservative president picked someone in the mold of a conservative person?" Mr. Graham asked.

"I would expect that," Ms. Kagan answered.

"Good," Mr. Graham replied, who had earlier declared that "elections have consequences" and that he would be "shocked if President Obama did not pick someone that shared his general view of the law and life."

This simple and correct assessment paved the way for an enlightening conversation, much of it focused on national security matters. Ms. Kagan acknowledged that the United States is at war; that the 2001 Authorization for the Use of Military Force and the Supreme Court have recognized the president's power to hold a detainee until the end of hostilities; that these authorities may weaken as time wears on; and that the president's power to hold terrorism suspects without trial would be bolstered by working with Congress to craft laws to govern these matters.

Mr. Graham also asked Ms. Kagan about Miguel A. Estrada, the talented Bush nominee who was inexcusably filibustered by Democrats for a federal appeals court slot. It's likely that Mr. Estrada's support of Ms. Kagan's nomination did not sit well with many conservatives; Ms. Kagan's declaration that Mr. Estrada is "qualified to sit" as an appellate judge and as a Supreme Court justice is clearly at odds with the views of many of the Democrats who will soon sit in judgment of her.

The conversation between Mr. Graham and Ms. Kagan was refreshing, open and informative and a useful reminder of how confirmation hearings can and should work.

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