June 30, 2010
Questions and Statements in the Kagan Hearings
Posted by David Zaring

I've only been keeping quarter of an eye on the Kagan hearings, not out of interest, but because I generally find this sort of thing to be a shocking waste of time, and I want to see if I'm right.  I don't quite know why the Senate does it.  That greatest deliberative body doesn't exactly look like a brace of British MPs when it comes to cut and thrust questioning.  But at least Kagan's a little better in the Q&A than was her amazingly pious, and disingenuous, opening statement, which included a lengthy buttering up of the senators ("each of you has been unfailingly gracious and considerate"), groan-inducing filial flag waving ("my parents lived the American dream"), and this sort of sanctimony:

Mr. Chairman, the law school I had the good fortune to lead has a kind of motto, spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to "those wise restraints that make us free." That phrase has always captured for me the way law, and the rule of law, matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls "the blessings of liberty" - those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.

I had the good fortune to attend the law school Kagan would later have the good fortune to lead, and believe me, I never heard anything about "wise restraints that make us free."  Unless they were the restraints on the laity that prevented them from practicing law.  But maybe that's because my class spent its time in the library, hiding critical texts from other students.  (It does sound like things changed, as Erik's prior post attests.)  Anyway, I can barely imagine academics saying this sort of thing without blanching, but Kagan has long looked more like a politician than a legal scholar to me.  A  moderate to conservative one, to boot, which is why I would confirm her even if she made 7 incredible gaffes during the hearings, if I were a Republican senator, because the alternatives will all be worse.  Which makes the kabuki theater of the hearings all the more pointless.

Like I said, thank goodness that in the Q&A she has come across a little less preciously.  I still don't see the point of these hearings, but a couple more days of non-answers that at least appear to have heard the question, without bowing and scraping to people who aren't going to vote for her anyway, might be a bit reassuring on the "she's not a total automaton" scale.

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