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06.28.10

How Elena Kagan Schooled Congress

Yes, she looked ill at ease during opening statements on her high court bid. But Lindsey Graham’s praise for her national-security bona fides gives her all the cover she needs.

After three-and-a-half hours of intense senatorial verbiage—with Democrats and Republicans vying manfully with each other for the accolade of "Blowhard of the Day"—Elena Kagan put in a performance of such elegant composure, such even-keeled economy, such impeccable humility, such eye-catching dignity, that it is hard to believe that there are some who will, in the days ahead, fight tooth and claw to prevent her ascent to the Supreme Court of the United States. This correspondent, for his part, is prepared to bet his last simoleon that Kagan’s nomination will sail through the Senate, with a number of Republicans joining Democrats in their support for her.

Jeff Sessions did his best to give us an updated version of Teddy Kennedy’s speech on Robert Bork.

Kagan’s opening statement—which came at the very end of the first day of her nomination hearings before the Senate Judiciary Committee—was pitch-perfect. She made an early reference to "those wise restraints that make us free"—clearly a response to accusations of "activism" that have been leveled at her from the right. “The Supreme Court is a wondrous institution," she continued, "but the time I spent in the other branches of government remind me that it must also be a modest one—properly deferential to the decisions of the American people and their elected representatives." She said this with a face that was tilted at an appropriately deferential angle, and with a voice that betrayed—to my delight—the vowels of Manhattan's Upper West Side. (She sounded, let us say, like a wise Ashkenazi woman.) She would, if nominated, decide cases “impartially, modestly, with commitment to principle, and in accordance with the law.”

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Supreme Court nominee Elena Kagan gives her opening statement.

Would the Republicans on the committee have found these words reassuring, one wonders. After all, Jeff Sessions, the ranking Republican, had earlier in the day done his best to give us an updated version of Teddy Kennedy’s speech on Robert Bork: So much so that one was waiting for him to utter the phrase “In Elena Kagan’s America..." But it never came. What we did get from him, however, was a censorious shower, replete with "serious concerns," rendered in a caustic, withering Alabama drawl. He called her an "activist," of course, and spanked her for "[associating] herself with well-known activist judges" (those being Thurgood Marshall, for whom she clerked, and Aharon Barak, a former president of the Israeli Supreme Court, whose name came up with such frequency all day that one was mildly surprised not to see it trend on Twitter). Kagan, he continued, was "consumed more by politics than by law." And what's more, she had "demeaned our soldiers" with her ban on military recruiting on the campus of Harvard Law School while she was the dean there.

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The Democrats, for their part, saw no contradiction in urging bipartisanship on the one hand, and then lining up to excoriate the Roberts Court for its decisions in the Citizens United case  this year, and the handguns case today. Patrick Leahy, the committee's chairman, rasped and growled his way inarticulately through a series of condemnations of the Roberts Court, kicking its predecessor, too, for good measure in a criticism of Bush v. Gore (a case which, he said, "shook people's confidence in the court's credibility"). Russ Feingold, Al Franken, Chuck Schumer, Sheldon Whitehouse—they all performed exactly as you'd expect them to; as did Arlen Specter, whose ponderous prolixity today made me give thanks to those who have defenestrated him in Pennsylvania.

Most tedious of all, though, was John Cornyn, who affected an Olympian approach in his address to Kagan: "My advice to you is to be absolutely and completely honest with the committee." In other words, he asked Elena Kagan to incriminate herself. Somewhat puzzlingly, he continued with this exhortation to her: "My hope is, with your stellar academics, and your stellar intellect, that your patriotism will be just as stellar." Corny Cornyn.

The senators offered up a variety of salutations as they addressed Kagan: Some called her "General Kagan" (a nod to her current job as solicitor general); others referred to her as "Ms. Kagan," or "Miss Kagan," or "Dean Kagan." Inevitably, there was one—John Kerry, of course—who referred to her throughout (and somewhat unctuously) as “Elena.” Kagan must have wished, however, that he hadn’t hugged her quite so effusively before he addressed the committee. (How will that play with Jeff Sessions?) 

The most intriguing passage of the day came from Lindsey Graham. "It's going to be a good couple of days," the Republican senator said to Kagan, before adding: "I hope you somewhat enjoy it..." Kagan, whose face had looked throughout the hearings as if it were about to crumple into tears, reacted with a girlish smile and a giggle. She must have felt even more at ease after Graham's next words, in which he conceded that "there's things you've done as solicitor general that merit praise." He was referring, mostly, to her record on questions of national security, and it is in this area that she stands her best chance of winning support from some Republicans. In Graham's telling, in effect, Kagan is liberal—but not a Ruth Bader Ginsburg liberal: i.e., you can trust Kagan on the tough, unsentimental security stuff. 

Graham also alluded to the letters of support she's had from conservatives such as Miguel Estrada, Ken Starr, and Ted Olson, even as he made clear his opposition to the Obama Project (which includes, naturally, the nomination of Kagan). But watch her conservative supporters talk up Graham's nuances in the next days. There was very much there that can be usefully, and decisively, milked.

Tunku Varadarajan is a national affairs correspondent and writer at large for The Daily Beast. He is also a research fellow at Stanford’s Hoover Institution and a professor at NYU’s Stern Business School. He is a former assistant managing editor at The Wall Street Journal. (Follow him on Twitter here.)