I know I'm in the minority here, but Elena Kagan's confirmation hearing has been the most substantive and interesting since the Clinton administration. The last three confirmation hearings have been marred by disingenuousness -- whether it was John Roberts with his facile "balls and strikes" metaphor, Samuel Alito playing up his empathy for immigrants, or Sonia Sotomayor being forced to resort to platitudes in the face of implacable racialized hostility by her questioners. Maybe "better than the last three confirmation hearings" is a low bar, but there's no question that it's been met.
Kagan, because she's aroused much less hostility from everyone but Sen. Jeff Sessions, has been able to provide an alternative legal philosophy from that espoused by Roberts.
The metaphor might suggest to some people that law is a kind of robotic enterprise. That there's a kind of automatic quality to it. That it's easy. That we just sort of stand there, and we go “ball” and “strike” and everything is clear cut, and there's no judgment in the process. And I do think that that's not right, and that it's especially not right at the Supreme Court level, where the hardest cases go.
Kagan added, "Judges do have to exercise judgment; they're not easy calls, [but] that doesn't mean they're doing anything but applying the law. ... Law does require a kind of judgment, a kind of wisdom."
As I wrote yesterday, Kagan's revealed a great deal about her legal philosophy by rejecting obtuse textualism, acknowledging that there are times when judges should privilege the actual principle outlined in the Constitution over framer intent, and arguing that while the Constitution does not change, the circumstances under which we interpret it do. This clearly places Kagan on the liberal side of legal philosophy, and while she can't indicate how she'd rule on important cases, there's no question that for the first time since Roberts, a nominee has meaningfully challenged the prevailing conservative philosophy of judging.
That said, I agree with Scott Lemieux when he writes:
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.
I think big part of what motivates Kagan's harshest critics on the left was the recognition that there was no possible way, absent a significant paper trail, that this was going to be revealed during the hearings, and it's true. We won't know whether Kagan is more Summers or Marshall until we know. And by then it will be too late.
*Edited for clarity
