Despite her long-ago criticism of Supreme Court nomination hearings as a "vapid and hollow charade," Elena Kagan has been careful to portray herself as "modest" and "properly deferential," neatly sidestepping questions that might cause controversy or threaten her all-but-certain confirmation.
The vapid and hollow approach is working just fine for her.
The Republicans are doing their best, anyway--attacking Kagan's lack of judicial experience, and slamming her mentor, Thurgood Marshall, as a radical activist who surely imparted his outrageous civil-rights views to his former clerk. But you are pretty deep in wing-nut territory when association with a heroic figure like Marshall is a disqualifier.
On the more salient issues--executive power, torture, conduct of the war on terror--Kagan is lucky to have her friend Lindsey Graham on the Judiciary Committee.
Graham reminded everyone that Ken Starr has endorsed Kagan (ugh), and praised her work as Solicitor General undermining habeas corpus. With friends like that, who needs liberals?
Graham engaged in friendly banter with Kagan. He set up a joke for her, asking where she was on Christmas Day--her reply that, like most Jews, she was probably at a Chinese restaurant, cracked up the room.
Arlen Specter liked the one about how she would have to have her hair done more often if there were cameras in the courtroom.
What's not to like about vapid and hollow?
When Graham rebuked Kagan for characterizing a piece of legislation he sponsored, stripping Guantanamo detainees of all due process rights, as "what dictatorships do," and called Kagan's objection "a little over the top," it sounded like a gentle quibble. That's bad news for civil libertarians.
Kagan punted on the big issues, including gun control (she reiterated the sense of this week's Supreme Court decision that it allows for some restrictions); Citizens United (though she agreed with Russ Feingold that it was "unusual" that the Court would make such a broad ruling); corporate power (as in justice for the victims of a BP-like disaster), and executive power (whether the President appoints unconfirmed "czars" is not really an issue for the courts, she said.)
Like most recent nominees, Kagan expressed discomfort at weighing in on any issue likely to come before the Court, although, depressingly, she declared that she has "no moral qualms" about applying the death penalty.
Her opening statement emphasizing "modesty" echoed the immodest John Roberts, and Republicans brushed it away, seeming to think she will be a flaming liberal activist on the bench.
But her demeanor--her jokes, her easygoing manner--might allay some of those concerns.
Above all, Kagan comes off as a company woman, not given to confrontation or disquietingly ideological views. So far, she is sailing through the confirmation process.
Texas Republican John Cornyn intoned, obscurely, "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war and we are all the crew."
But the Senators on the Judiciary Committee and the Supreme Court nominee seem more like fellow passengers on a cushy, corporate-sponsored junket--the speeches and presentations are dull, but the food is good and the company is comfortably civilized.
If there is a war going on, it is a long, long way from here.
If you liked this article by Ruth Conniff, the political editor of The Progressive, check out her piece “Sarah Palin’s Feminism and Ted Olson’s Stand for Gay Rights.”
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