Groundhog Day in the Senate

The Elena Kagan nomination hearings began in full this morning.  She is presently engaged in a tedious, boring (even if necessary) game of "gotcha" with Senator Sessions over "don't ask, don't tell" and the Solomon Amendment.  No big surprise there.  What I do find quite remarkable is how Senator Session wields his power as he does, in hearing after hearing, yet the nominees remain respectful and deferential all along.  That alone is a test few of us could probably meet, and is perhaps the very best test our constitutional system could device for a Supreme Court nominee.

As I listen, however, another nomination hearing comes to mind, that of Chief Justice Roberts back in 2005.  For a flavor of what is to come, just compare the prepared statements from Roberts and Kagan. They are so similar that it is downright scary.

This is right out of "Groundhog Day."

Both nominees told us about the blessings of liberty, the rule of law, and their childhood upbringings.  This is to be expected, and does not mean all that much, particularly not in this setting.  The big ticket was their views on judicial posture, and unsurprisingly, they are stated so similarly that it makes you wonder whether they used the same speech writer.

Remember Chief Justice Roberts famous declaration that his job was to call balls ans strikes, like an umpire in a baseball game.  His statement, in full, read as follows:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

This is a statement that played well with the Senators and the press, even if it is far from the real work of a Supreme Court justice.  General Kagan did not offer a similar analogy yet hewed to the same narrative:

I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.

This is only to say that she would be an open-minded justice, open to all arguments and positions.  What's not to like about that?  Chief Justice Roberts agreed in full:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

In saying all of this, the nominees did diverge in one important area: while Chief Justice Roberts chose to highlight the importance of the Supreme Court as protector of rights and liberties, General Kagan highlighted instead her admiration for our democratic process, and her view that democratic outcomes should not be upended at a moment's notice.

Maybe it is here where the real clues lie to the future of a Kagan tenure on the Court.   We know that Chief Justice Roberts is not shy in overturning federal statutes, arguably in the interest of liberty and the rule of law.  Citizens United comes to mind, and the upcoming fight over the Voting Rights Act.  I must say that, if Kagan really means what she says about her respect for the democratic process, I for one am encouraged.