Kagan Confirmation Hearings

Elena Kagan took on the judge-as-umpire/ball-and-strike meme yesterday in response to a question from Sen. Klobuchar and knocked it out almost as successfully as she could. No transcripts to be found, but here is the video and some thoughts.

1) Kagan said it was apt in saying that judges, like umpires, should not have a "team in the game," should not come onto the field rooting for one team over another.

OK answer, although she lost points for not using the Twins in her hypo in response to a question from a Senator from Minnesota.

As I have argued before, to the extent this is what the metaphor means, it does no work. No one believes a judge should be "rooting" for one party over another and we don't need an analogy to baseball to drive the point home. Besides, no one seriously believes an umpire "roots" for one team or that a judge "roots" for one party.

Since those senators - Jon Kyle, Jeff Sessions and John Cornyn - don't have the nominee they'd hoped for, "the kind of nominee they wish President Obama had nominated - one who was black and unabashedly liberal," they sought a means to dragging a divisive cultural debate into the forum by turning to Kagan's "association" with the Civil Rights icon Thurgood Marshall.

In "Trashing Thurgood Marshall," Ifill notes, like a growing number of commentators, that the Republican's attacks on the legacy of a Civil Rights champion (Marshall pictured with Kagan in 1988) are "a new low," and a "sucker-punch" on the first day of the hearings, one that is spurring backlash.

Ifill writes:

Race, class and culture divisions are themes that some Republican senators turn to again and again at confirmation hearings. They do this by invoking the specter of out-of-touch elites, unqualified racial minorities, the dangers of international law and equal rights for gays and lesbians.

And so it was attack by association. Kagan's work as Thurgood Marshall's law clerk after she graduated for Harvard Law seemed too good an opportunity for some Republicans on the committee to pass up. Invoking Justice Marshall as an activist gave the Republicans on the committee the chance to criticize the kind of nominee they wish President Obama had nominated - one who was black and unabashedly liberal. The fact that President Obama chose not to appoint such a nominee (precisely to deny Republicans the opportunity to paralyze the country with divisive and unproductive hearings) was of no importance. Elena Kagan was, in essence, raced by the committee members, who used Justice Marshall as a racial stand-in for President Obama and a proxy in the ongoing culture wars.

Outside the Senate Judiciary hearing room, Justice Marshall is regarded as one of the greatest lawyers and most admired judges of the 20th century, so the way the Republicans talked about him -- as a dangerous judicial activist "outside the mainstream" -- was pure theater. Marshall was an unabashed liberal at a time when that word was simply a place on the ideological spectrum, not an indictment. Indeed Marshall's place on the legal spectrum is well within the mainstream of legal thought -- so much so that he was confirmed by a vote of 69-11 for a seat on the Court. In 1967.

But Marshall's legacy stands up to the Republicans' personal attacks, Ifill continues. His legacy includes a long list of principled stances, fights and heroic struggles that built a better nation, albeit one with much progress to be made. Marshall eloquently argued the unconstitutionality of the death penalty, and gave us the resounding statement in favor of privacy rights - "if the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels as the thought of giving the government the power to control men's minds."

Ifill's entire article is available here.