No Comment — July 1, 2010, 4:13 pm

Judiciary Committee Winners and Losers

Elena Kagan ended her testimony before the Senate Judiciary Committee yesterday. The hearings have followed the predictable pattern: it’s been a game of dodgeball in which the nominee establishes a competent familiarity with Supreme Court precedent, states a view about things that are established law, and avoids stating opinions about matters that may yet come before the court. Stacked up against recent players like Roberts, Alito, and Sotomayor, Kagan demonstrates considerable skill and finesse and a better sense of humor in the firing line than any of her predecessors. She also offered some intelligent discussions of constitutional issues and demonstrated the requisite subtlety in approach that should be the hallmark of any Supreme Court justice. While we’ve learned little about what Kagan will do about some sensitive issues that are likely to come before the Court, her confirmation should at this point be accepted as a given. Mark Kagan as a winner coming out of this process.

But the hearings also provide a forum to judge the senators asking the questions, and I believe there are some winners and losers there, too.

First, the big loser is Alabama Senator Jeff Sessions. His veneer of Southern gentility disintegrated quickly, and, as in the Sotomayor hearings, he offered up the most interesting gaffes (referring to don’t-ask-don’t-tell as policy right after he had berated Kagan for calling it policy, for instance). Sessions, as ranking member, was responsible for coming up with a strategy for opposing the nominee. At this point there was nothing that would take the nominee down, so the strategy was to serve two major purposes: to work up the Republican base and to make G.O.P. “no” votes at least appear to have some basis in principle. Sessions settled on two major tactics. The first was to attack Thurgood Marshall as an “activist judge,” apparently turning him into a surrogate. But was attacking an iconic figure of America’s civil rights movement smart? It might go over well with the Mobile Country Club crowd in which Sessions moves, but for the nation as a whole it probably backfired. Sessions’s second tactic was to attack Kagan over Harvard Law School’s policy decision not to allow military recruiters to use its outplacement services as a protest over DADT. On this point, he essentially called Kagan a liar and provided his own testimony about what happened at Harvard—drawn from largely uncredited sources. As Joe Conason notes, this only opened the door to questions about Sessions’s own past and the creditworthiness of his testimony before the same committee:

Of course everyone knows that the fundamental reason for the committee’s decision to dump Sessions was his unreconstructed Deep South attitude, usually described in the oh-so-careful Washington lexicon as a “lack of racial sensitivity.” Copious evidence included persuasive testimony from former colleagues who recalled his appalling remarks in private about the Klan (he liked them until he learned that some Klansmen were “pot smokers”), the NAACP (“un-American” and “Communist-inspired”) and the American Civil Liberties Union (also “un-American” and “Communist-inspired”). He had castigated a white lawyer who fought for equal voting rights as “a disgrace to his race” and repeatedly called a black assistant U.S. attorney “boy,” warning him to “be careful what you say around white people.” The squalid legal career of Sessions, who had misused his power as U.S. attorney to protect Alabama’s racist political machinery, was thoroughly examined in 2002 by the New Republic’s Sarah Wildman. She reported that Sessions admitted making some of the ugly remarks and denied others, but dismissed them all as mere joking. But Thomas Figures, the black former U.S. attorney who had worked for Sessions, was not amused: Sessions, he said, had called him “boy” and, after overhearing him chastise a secretary, warned him to “be careful what you say to white folks.” Figures [said] … he too had heard Sessions call various civil rights organizations, including the National Council of Churches and the Southern Christian Leadership Conference, “un-American.” Sessions denied the accusations but again admitted to frequently joking in an off-color sort of way.

While Sessions acknowledged that some of the allegations were true — including the ugly “disgrace to his race” comment — he denied calling Figures “boy.” But Sen. Howard Metzenbaum, D-Ohio, since deceased, said publicly that he didn’t believe Sessions. The nominee had “changed his statements” from one hearing to another, complained Metzenbaum, because “he fully understood that these statements might cost him his judgeship.” According to the Ohio Democrat, Sessions revised his story about the “disgrace” slur in particular: “Once he said he said it, once he said he didn’t recall saying it, and once he said he didn’t say it … This is a man who is hostile to civil rights organizations and their causes.” Sessions firmly insisted that he was wholly unprejudiced and guilty only of jesting too freely. But Alabama Democrat Howell Heflin, who had initially supported the nomination, ultimately voted no after hearing all the testimony, presumably because he felt that the nominee had been untruthful about himself and his past.

The other loser in the hearing was Iowa Republican Charles Grassley, whose fumbling questioning betrayed a failure to grasp fairly simple questions of procedure about the precedential value of a failure to grant a writ of certiorari—“hornbook law,” as Patrick Leahy remarked. Still more perplexing was Grassley’s assertion that the right to bear arms came not from the Constitution but from God.

Three other senators emerge as winners. One is Arizona Senator Jon Kyl. There’s little on which I would agree with Kyl, policywise. But he demonstrated a fine mastery of the interrogator’s art and something that is fairly rare among members of Congress—the ability to hit an evasive answer back with a finely honed follow-up. Kyl proved the Republicans’ most adept and most effective questioner—a sharp counterpoint to Sessions. If I were picking one of these senators as my own defense counsel, Kyl would be my pick.

Second, I was impressed by the tenacious, careful questioning of Arlen Specter. He’s leaving the Senate at the end of his current term and has no public to play to. But his questioning showed careful preparation and attention to important details, and his open display of irritation over Kagan’s evasive responses provided an edge that kept the hearings going.

Finally, I applaud Al Franken. Not only did he provide an alternative point of interest during slow points with his skillful doodling, Franken also proved himself an astute student of the Republicans. For years, they have used confirmation hearings to take their digs at their least favorite judges and judicial policies. Franken has responded in kind, taking a deep look at the Roberts court’s strange biases in favor of business and against labor and its innate hostility to business regulation. Who are those “activist judges” that Sessions complained about? Franken makes a persuasive case that they’re precisely the judges Sessions is so wild about: John Roberts, Sam Alito, Nino Scalia, and Clarence Thomas.

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