After completing two days of testimony before the Senate Judiciary Committee that was alert, thoughtful, and punctuated with flashes of wit, Elena Kagan now seems almost certain to become the nation’s 112th justice on the Supreme Court. But one minor slip — on a question about, of all things, fruits and vegetables — has given Republicans at least one chance to benefit politically from the hearings.
As she demonstrated in the two days of testimony that ended Wednesday, Kagan is a gifted scholar, a savvy politician, and a talented administrator, who spent hours preparing for this week’s appearances before the committee.
But perhaps no amount of cramming could have readied her for the question asked of her by Republican Sen. Tom Coburn of Oklahoma: Can the government, he wondered, pass a law forcing Americans to eat fruits and vegetables?
To Kagan, at first blush, the question must have seemed absurd, maybe even a joke. “It sounds like a dumb law,” she replied off the cuff. Then, realizing Coburn was serious, she segued into sort of the windy, contextual, cautious analysis that she has employed to answer most of the questions asked of her over the last two days.
But she had fallen into Coburn’s trap by answering more like the law professor she is than by simply responding like most people would. She never just said: “Of course it can’t.”
Within hours, a video detailing the exchange was atop the Drudge Report website, hundreds of thousands had viewed it on YouTube, and conservatives were having a field day. Her equivocation fit ideally with the narrative Republicans are trying to fashion during these hearings — a story of a federal government out of control and a Congress running amok.
For Kagan, it was a rare misstep in what proved to be an uneventful two days of testimony. The confirmation hearing for President Obama’s choice to replace the retired John Paul Stevens will continue Thursday with other witnesses, both supportive and critical. Even top Republicans conceded that her confirmation appeared likely.
But to a large extent, the GOP’s goal has always been about using the hearings to help set the political stage for the midterm elections in November.
Republicans tried to tether Kagan to the policies of the Obama administration. “When we look at Elena Kagan’s resume, what we find is a woman who has spent much of her adult life working to advance the goals of the Democratic Party,” Sen. Mitch McConnell (R-Ky.), the Senate minority leader, said on the floor Monday.
Republicans on the committee asked questions designed to strike chords with voters in the coming congressional elections, to better outline an “us-versus-them” argument against Democratic contenders.
Coburn’s seemingly innocuous inquiry was the perfect example: The fruits and vegetables served as a metaphor for the requirement, enacted as part of the healthcare overhaul passed by Congress earlier this year, that all Americans purchase health insurance. Coburn was essentially asking Kagan whether there was any limit to the reach of congressional power.
In his view, Kagan was saying that members of Congress “have the right to tell us anything we want — anything the federal government tells you to do, you’re going to do,” Coburn said Wednesday.
Beyond that exchange, however, Kagan worked studiously to avoid handing the GOP red meat. On Wednesday, she refused, for example, to state her position on the so-called partial-birth abortion procedure advocated in the 1990s by the Clinton administration, even though she worked as an advisor to President Clinton.
“I had no agenda when it came to this issue,” she told Sen. Lindsey Graham (R-S.C.).
Graham appeared incredulous. “I certainly have an agenda when it comes to abortion,” he said. “You can be pro-choice and be just as patriotic as I am. You can be just as religious as anybody I know.”
Throughout the hearings, Kagan maintained that conservative outcomes in cases involving gun rights and campaign finance are “settled law.”
Republicans were skeptical. One reason was Kagan’s surprising honesty about her politics. Unlike Justice Sonia Sotomayor, who testified before the committee last year, she freely admitted to a partisan affiliation. “I’ve been a Democrat all my life,” she said. She also, after some hesitancy, conceded that she was a “progressive,” although the term went undefined.
“The Republicans have made progress in painting her as a liberal on some core issues for conservatives like abortion,” said Thomas Goldstein, a Supreme Court analyst who attended the hearing.
Still, GOP senators such as John Cornyn of Texas said that her beliefs would not doom her nomination unless she indicated that she would not be able to set them aside as a justice. And there was some sense Wednesday that Republicans worried they had gone too far earlier in the week in criticizing Kagan’s mentor, the storied African American Justice Thurgood Marshall.
“Justice Marshall will go down in history as one of the icons of the law and one of the greatest justices in the history of the country, even though I disagreed with a lot of his rulings,” Graham said. “That’s the way it should be. And if our people say that’s activism, so be it.”
In a sense, both sides prevailed upon Kagan to be the very thing that both sides say they decry: a nominee with preformed views about the law.
Republicans such as Coburn were dismayed because Kagan would not commit to curtailing the power of Congress where appropriate. Democrats frequently pushed Kagan to criticize the current court, lead by Chief Justice John G. Roberts Jr., suggesting it has a pro-business stance.
“I want to make it clear that I’m not agreeing to your characterizations of the current court,” she told Democratic Sen. Sheldon Whitehouse of Rhode Island. “I think that that would be inappropriate for me to do.”
When pressed by Sen. Arlen Specter (D-Pa.) for her views on the right of certain parties to sue in court, she pushed back hard, to the point that Specter floated the possibility of voting against her confirmation.
“You shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues,” Kagan admonished.
She also exhibited a comprehensive body of knowledge about constitutional law, which gave the proceedings a more academic air than those of Sotomayor’s a year ago. By the second day of hearings, Republicans were no longer questioning her lack of experience on the bench.
“She has been, in my view, a witness who has manifested a deep knowledge of the law,” Assistant Minority Leader Jon Kyl of Arizona said.
A final Senate vote on Kagan’s confirmation is expected by early August.