The context of course!
And what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate–that their insistent questioning of Judge Bork was justified, if at all, by his overt radicalism and that a similar insistence with respect to other nominees, not so obviously outside the mainstream, would be improper. This belief is not so often or so clearly stated; but it underlies all that the Judiciary Committee now does with respect to Supreme Court nominations. It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases–in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption– as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate has absorbed criticisms like Carter’s and, in so doing, has let slip the fundamental lesson of the Bork hearings: the essential rightness–the legitimacy and the desirability–of exploring a Supreme Court nominee’s set of constitutional views and commitments.
While Kagan did write “[Judicial confirmation] hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,” she also indicated why she believes the process is a vapid and hollow charade. Kagan is calling for the overhaul of what has become inundated with politics and spectacle to the point that there is no longer anything to glean from the now empty ceremony (empty as it may be Justice Clarence Thomas referred to the hearings as “a living hell”).
Kagan probably never expected to be sitting behind the judicial confirmation hearing mic, fielding questions from Orrin Hatch like: “How could this quiet retired woman know about something like Long Dong Silver? Did you tell her that? Is that a black stereotype, something like Long Dong Silver?”
But through her writing of more than 15-years ago, she has invited the most stringent examination, a la Judge Bork. So bring on the racial epithets and religious slurs — Kagan demands it!
Picture from the New York Times.
Quotes from Elena Kagan’s 1995 piece Confirmation Messes, Old And New.