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The Supreme Charade

A Commentary By Susan Estrich

Wednesday, June 30, 2010

Supreme Court confirmation hearings are nothing but a charade.  "Balls and strikes" is what John Roberts said he'd call. Sonia Sotomayor, no fool she, said the same. Elena Kagan, ditto, is going to be a neutral arbiter. She isn't a "progressive." She will be fair and open.

Of course. She'd be crazy to say otherwise.

Once upon a time, back when she wasn't sitting at the table, Kagan suggested that prospective justices should try to outline their constitutional views at the confirmation hearings. Senators might learn more about who they were voting for. The watching public might learn something, period.

Not a chance. Now senators pretend to "learn" something by reading memos the would-be justice wrote nearly three decades ago as a law clerk. Would-be justices spend three days forgetting everything they learned about judicial decision-making in law school and since, claiming that values have nothing to do with it; neutrality is the watchword. It's not an educational experience for anyone. It's a game of "gotcha," and the way you don't get gotten is, basically, to say nothing.

Barack Obama won the election. He has the right to appoint someone to the Supreme Court who shares his philosophy, provided that he or she brings to the job the intelligence and experience to perform effectively. No one seriously doubts that Kagan brings such experience and intelligence. No, she wasn't a judge, but she is a serious student of the law and the solicitor general of the United States. I have no idea how the senators who voted to confirm her as solicitor general would now explain a vote not to confirm her as a justice, but since none of this is an exercise in candor or intellectual honesty, they'll just do whatever they want and say whatever seems to work.

Watching the confirmation hearings, unless you're a masochist or a satirist, is a waste of time. You learn nothing except how silly the process has become. Ever since Robert Bork -- who was highly qualified but also arrogant and divisive -- went down in flames at his hearing, every successive nominee has understood that the game is to say as little as possible, disown prior controversies, eschew any hint of ideology and simply endure. Five days of misery are certainly worth a lifetime appointment. I tell my students, when they bemoan the misery of the bar exam, that with luck, it's the last test they will ever take; the same is true in spades for Kagan. Miserable and ridiculous though this process may be, it's likely the last time she will ever have to endure it.

But the message it sends is all wrong: If you dream of being a justice, don't ever take a controversial position. Imagine if she had represented an individual accused of terrorism. Imagine if she had actually written law review articles advocating truly progressive positions.

The funny thing about these hearings is how little months of digging for dirt on Kagan have revealed. In fact, she has been extremely careful in what she has said and written, far more careful than most law professors I know. Investigations into her personal life have failed to reveal poor choices and bad moments, which is more -- or less -- than I can say for most highly qualified 50-year-olds I know.

It's a ridiculous standard to have to meet to serve on the bench. Indeed, so far as taking controversial positions and representing controversial clients, it is one that does not necessarily produce the people of courage and conviction we need on the federal bench. But sadly, it has become the operative test. Most people who run for president, including those who win, could never be confirmed as a justice -- too human, too many mistakes in life. How ridiculous.

Republicans will claim that they are not to blame; it was the Democrats who supposedly started it with Bork. Fine. So what? As every mother knows, the issue is not who started it, but who is going to end it. The answer seems to be that no one is, not any time soon.

Obama was lucky to find in Kagan a nominee who is both highly qualified and capable of being confirmed. The two do not always go hand in hand.

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