Kagan Wrap-Up

Well, let's see.  She's going to be confirmed.  She'll probably draw about the same size of opposition as Sotomayor did, about 30 or so Republicans.  They seem to have even less to hang their hats on, but the threat of eventual primary challenges has grown since last year, so I'm assuming that the safe move for most Republicans is to vote no.  I really haven't watched much TV coverage -- I listened to almost the entire two-plus rounds of questioning, and that's really enough -- but I did hear one conservative pundit complaining about the lack of spine shown by the Republicans in supposedly not filibustering, so if there's a lot of that out there it's possible, I suppose, that they'll force a cloture vote.  If I were Harry Reid, I'd insist on it, just to mess with them.

It's hard to grade the confirmation hearings, because it's difficult to know what the point of it is.  One of the Republicans, I think it was Tom Coburn, pretty much seem to think it was all a waste of time.  I don't think so.  Here's what I said at the beginning of the week:

Lots of stuff in democracies is about putting things on the record, and about forcing our elected and appointed leaders to explain themselves.  In general, our political culture doesn't do well with pre-ordained outcomes.  We tend to, on the one hand, look for the Perry Mason moment when one side concedes that the other is correct; on the other hand, we want everyone to make up their own minds based only on the arguments they hear today, without any long-term commitment to groups or ideologies interfering with our pure exercise of unattached reason.  Since both of those things are far more myth than reality, people get frustrated with things such as judicial nomination hearings, Congressional floor debate, and for that matter candidate debates, even though (in my view) each of those fulfill very important and useful purposes.

I'll stick with that.  The structure of the hearings isn't great...we'd be far better off with no opening statements from the Senators, and with a couple of lead questioners on each side, rather than everyone having equal time.  On the other hand, because Elena Kagan had managed the impressive accomplishment of apparently living her life in anticipation of a Supreme Court confirmation battle, the questions were generally substantive, with the big exception being the close examination of her record with the military recruiters.

The last bit of this is that it shares something with campaign stump speeches: the professionals watching have seen it all before and find it mind-numbingly boring.  Unfortunately, what it does not have are mobs of people paying close attention.  So we have a ritual of the Court and the Constitution, watched mainly by people who have heard it all before, most of whom are looking for Perry Mason moments that the hearings can't, and probably shouldn't, deliver.  In other words, a lot of the complaints about these hearings show a problem with the audience, not the event.

I'd add one more thing...Scott Lemieux notes that what we know now is what we knew going in, that Kagan is "liberal in a broad sense" but that where she sits on the a spectrum "from Larry Summers to Thurgood Marshall...is likely to remain a mystery."  He's right -- but I don't think that's a problem with the process.  We don't know, because as she approaches a twenty year career on the Court, give or take twenty years, even Elena Kagan probably doesn't know.  She's going to evolve and change as she adapts to her new role.  And how that happens will be in part her general approach now, in part her specific ideas now, in part unknowable changes in her over time, and in part unknowable reactions between her, the specific cases that the Court will deal with, and her colleagues over time.  If we had a nominee with, say, a record of speeches and law review articles stating clear positions on many of the things on which Kagan has no record, the unknowns would still swamp the knowns.

(Update: Typos fixed).