What the Kagan Hearings Do and Don't Tell Us.

I largely agree with Adam's take on the Kagan hearings so far. Certainly, in terms of appeal she's been nearly flawless. And while this is an extremely low bar, her responses have had more for the grown-ups than those of the previous three nominees. I'm glad that she's explained the problems with John Roberts' much-praised but entirely vapid "umpires" analogy. And, like Adam, I'm glad she's coherently explained why she doesn't adhere to a grand theory like originalism. After all, as Scalia explicitly reminded us earlier this week (and has implicitly reminded us before), in practice even the Court's "originalists" are pragmatists who don't think that the original meaning of a constitutional provision should always be controlling (not to mention how you'd come to determine the "original" meaning).

On the other hand, her performance doesn't really address my central reason for being unsatisfied with the pick: Why pick such an easily confirm-able justice at a peak period of Democratic strength in the Senate? Everything she said about grand theory not only could have been said but has been said by Stephen Breyer, a moderate who sailed through a Republican-controlled Senate. For that matter, what she's said could have also been said by Sandra Day O'Connor or Anthony Kennedy.

In short, after three days of hearings, I think we've confirmed what we already knew. Kagan is extremely intelligent and charming, and liberal in a broad sense -- that is, "liberal" in a way that could describe everyone from Larry Summers to Thurgood Marshall. Where Kagan sits precisely on that spectrum is likely to remain a mystery.

-- Scott Lemieux

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