As you are probably aware, Elena Kagan was confirmed this afternoon to the Supreme Court by a 63-37 vote, with five Republicans supporting and one Democrat, Ben Nelson of Nebraska, opposing. Nelson’s is a vote to keep his seat in conservative Nebraska.
Obama, in remarks this afternoon at the top of a fundraiser in Chicago, seemed to be still making the case for Kagan, even though she’s in. The reason, I’m sure, is to avoid her becoming an issue for the Senators who backed her. He celebrates her for each of the characteristics she possesses that are actually problems.
Over the past two months, the committee has scrutinized Elena’s record as a scholar, as a law school dean, as a presidential advisor, and as Solicitor General.
Unfortunately, she’s far from a major legal scholar. She’s never been a judge. She’s hardly been a lawyer. She is not qualified by any of the usual criteria to be on the Supreme Court.
And after 17 hours of testimony during which she answered more than 540 questions, I’d say they got a pretty good look at Elena Kagan.
Instead of bravely reversing the trend toward meaningless confirmation hearings in which nothing is learned of the nominee, she cynically backtracked on her own criticism of the process and said as little as possible. Seventeen hours of nothing is still nothing. And 540 questions does not mean 540 answers.
Elena understands that the law isn’t just an abstraction or an intellectual exercise. She knows that the Supreme Court’s decisions shape not just the character of our democracy, but the circumstances of our daily lives – or, as she once put it, that “behind the law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by law.”
Where did she learn this? From the other Manhattan elite with whom she grew up? From the Ivory towers she has inhabited since graduating summa cum whatever from all the right schools? From the rarefied corridors of the West Wing? Please, abstraction and intellectual exercise is her specialty. That she’s good at these is actually her only case for being on the Court.
When Elena takes her seat on that bench, for the first time in our history, there will be three women . . . It is, as Ruth Bader Ginsburg recently stated, “one of the most exhilarating developments” — a sign of progress that I relish not just as a father who wants limitless possibilities for my two daughters . . .
Uh, wasn’t that kind of the case for electing Hillary president?