A fair degree of praise has come down on Elena Kagan for her performance at the confirmation hearings. I don’t get it.
She isn’t eloquent. Just count the number of “uh . . . uh . . . uh” sequences in any five minutes. The halting, sometimes mumbling delivery is annoying.
She isn’t pointed in her legal ideas. Her general statements about law and justice sound altogether routine.
She avoids debate. Note what she said in response to one senator who cited a supporter terming her a “legal progressive.” She denied knowing even what that term “means.” Does anybody here buy that? When pushed, she declared that people should really be able to pick their own labels for themselves. That’s a sentiment one might hear in a middle-school classroom.
Finally, her idealism of the courts is hard to take. At certain moments, especially when defending Justice Marshall, she hailed the courts as the purest, highest recourse of ordinary citizens in the United States. Well, only someone who has spent an entire adult life on elite campuses or Pennsylvania Avenue would think so. Remember that it was the courts that gave us “separate but equal,” the courts that promoted Jim Crow and peonage and the chain gang and convict leasing, the courts that rejected Kagan on Citizens United which Obama, Shumer, and so many others regard as an abomination, etc.
On the other hand, I don’t think any of these considerations is disqualifying. Kagan should be confirmed.
16 Responses to Elena Kagan
goxewu - July 1, 2010 at 2:21 pm
C’mon. Everything that’s really relevant about Kagan (or any recent Supreme Court nominee) is either publicly available in any sizeable library or online, or has been ferreted out by the Senators’ staffs. And since a Supreme Court justice is not a job involving performing in public, Kagan’s (or any SCOTUS nominee’s) performance at them is doubly irrelevant.The hearings are pure show, with the speechifying interrogators playing to the voters back home. It was almost worth it though, to see what Lindsey Graham thought was a fastball question, “I just asked you where you were on Christmas,” turn into a line drive right back through the box. Nice.
markbauerlein - July 1, 2010 at 11:14 pm
Graham did, however, get a nice statement from Kagan about Estrada, and the senator from NY needed to hear it.
redweather - July 2, 2010 at 8:37 am
Try to put yourself in her position for a minute, Mark. She’s on a big stage. Her supporters hope she won’t say anything stupid; her opponents hope she will. That’s bad enough. But on top of that, none of what goes on during her confirmation hearing has anything to do with her job on the Supreme Court. How people like Kagan and Sotomayor and Roberts maintain their composure while being repeatedly asked to answer idiotic questions is beyond me.
markbauerlein - July 2, 2010 at 5:28 pm
Fair enough, redweather, although I have testified at a few state hearings. You’re right that the confirmation process has become a game, largely a waste of time, and it probably dates back to this infamous declaration by Senator Kennedy:”Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, . . .”
redweather - July 2, 2010 at 5:59 pm
I think it probably goes back even further than that to Potter Stewart’s nomination in 1959. He had plenty of opposition from both Democrats and Republicans, and they were pretty vicious.
slowlearner - July 4, 2010 at 3:08 am
Kennedy was pretty much right about Bork. http://www.prospect.org/csnc/blogs/tapped_archive?month=08&year=2009&base_name=yeah_lets_talk_about_borkIt's a damn good thing he wasn’t confirmed.
markbauerlein - July 4, 2010 at 10:37 am
Would you agree, then, that everyone who is pro-life aims to “force” women “into back-alley abortions”?
slowlearner - July 4, 2010 at 6:59 pm
If your aim is to make abortions illegal, then the logical and foreseeable consequence is that many women will have unsafe abortions. I don’t see how anyone could reasonably dispute that.
goxewu - July 5, 2010 at 8:11 am
Prof. Bauerlein elsewhere gives convincing testimony to the fact that having made marijuana illegal doesn’t prevent the mass use of marijuana in this society and, in fact, rather exacerbates the problem by making marijuana use a criminal matter, thereby creating profitable and violent pot-peddling operations. But somehow he seems to think (or at least defends-by-implication Bork’s thinking) that making abortions illegal will stop them from occurring and that vast numbers of “back alley” or “coathanger” abortions won’t be performed. Lots and lots of people seem to need a toke to get them through the grinder of modern life (not everyone has a nice full professor’s sedentary job and a comfortable office in an elite private university) and draconian drug laws won’t stop them from trying to get hold of weed. Lots and lots of women (a substantial number of them already married, with other kids) get pregnant and don’t want to give birth, and anti-abortion laws will result in a tradeoff between fewer abortions and more dead and/or mutilated women.
new_theologian - July 5, 2010 at 4:13 pm
I know it seems as if making abortion illegal increases the mortality rate from abortion, but that’s not actually true. More women die from abortion or complications arising from abortion today than they did before Roe v. Wade.
markbauerlein - July 5, 2010 at 5:43 pm
In #8 and #9, we have an odd understanding of the word “force.”
livefreeordie2 - July 5, 2010 at 11:40 pm
Roe v. Wade is doomed. Not today. . .not next week. . .but soon. Why? Not from the courts or the pro-lifers, but from science. I have always been of the Clinton viewpoint on abortion – I don’t like it, but it’s between a woman and her doctor, it’s not really a human, etc. And then I saw an ultrasound of a ten week-old fetus. It’s within the first trimester, but it’s a baby! A human baby! As clear as can be. . . It can’t survive outside the womb, but then again a full term infant can’t survive outside the womb without the care of someone else. It didn’t make me a pro-life nut – I still wouldn’t blink in choosing the life of the mother – but it’s otherwise impossible to rationalize killing a baby. I’m sorry, it’s not just a lump of protoplasm. It’s human. And the more we learn about the development of babies in the womb, the more difficult it will be for average Americans to support the infanticide perpetuated by Roe v. Wade.
slowlearner - July 6, 2010 at 12:49 am
#10That’s absolutely false. In fact, maternal mortality related to abortion has declined dramatically in the U.S. since Roe v. Wade.http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf (see p. 13)
new_theologian - July 6, 2010 at 11:08 am
I’m not going to get into a back-and-forth with slowlearner over abortion-related statistics. Suffice to say that there are widely differing findings available, in part because it is very difficult to get accurate data on the whole question. That, of course, is due, partly to the politicization of the issue. Policy stake-holders want to spin facts in ways that suit their needs–as Ms. Kagan had done for the Clinton Administration, but that is not the point I was setting out to make. I do see it as a big problem, though, that, today, in most “hot button” issues, even the facts themselves are subjects of disagreement.
goxewu - July 6, 2010 at 5:54 pm
No, it’s Prof. Bauerlein who seems to have an odd understanding of the word “force.”The idea that making abortion illegal will not force any women who want them to resort to illegal abortions because, after all, they have the choice to go ahead and give birth is like saying…oh, the parallels should be too many and too obvious to mention. Especially to someone who thinks that having pot-smoking illegal forces–in terms of the society as a whole–pot-smokers to get their weed illegally. After all they–and American drinkers of alcoholic beverages during Prohibition–could have just as easily chosen not to smoke pot or drink alcohol. And a, say, pregnant 36-year-old mother of three in a household where her husband has just been laid off from his $28,000-a-year job and wants an abortion because the kids are already eating cole slaw sandwiches in their school lunches and haven’t seen a dentist in two years, can simply choose to go ahead and give birth. She’s not “forced” to have an illegal abortion. Right.
goxewu - July 7, 2010 at 8:11 pm
Addendum:”Environmental Protection Agency staffers have been forced to ignore relevant science…” —from a liberal news outlet, during the GWB administration”The situation between Jake Pavelka and Vienna Girardi got so ugly during their secret reunion that ABC was forced to end the taping…” —from RADAR, about a reality TV show”Magazines who want to claim added circ are forced to create almost exact copies of their print editions…” —from a conservative news blogIn these three sentences, nobody was “forced” to do anything in the literal, gun-to-the-head sense that Prof. Bauerlein seems to demand in the case of back-alley abortions. But all three are examples of a current, conventional and, I daresay, reasonable use of the word “forced.”