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Jewish World Review
June 25, 2010 / 13 Tamuz 5770
The UnBorkable Elena Kagan
Say it ain't so, Elena.
Elena Kagan thinks that the "Borking" of Robert Bork during his 1987 confirmation hearings for the Supreme Court would deserve a commemorative plate if the Franklin Mint launched a "great moments in legal history" line of dishware.
This is not the time to rehearse all the reasons why Kagan is wrong on that score. Still, there is one adverse result of the Bork hearings worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the left, no nominee since has dared show Borkian forthrightness.
Consider Monday's thunderclap from the judicial Mount Olympus: The Second Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas' separate opinion in favor of the 14th Amendment's "privileges and immunities" clause over the due process clause was the better argument. But that's a debate for another day.
The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen Breyer's dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. "I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes," Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, "Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right?"
"Yes, sir," she replied.
Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That's why Leahy asked the questions the way he did, and that's why Sotomayor answered them the way she did. It's also why he spun her answers into more than they were: "I do not see how any fair observer could regard (Sotomayor's) testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes." He made it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn't. (As a judge, she was hardly a hero of the NRA.)
Here's the point: Sotomayor wasn't an exception to the rule; she was following it.
Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor's width on the side of truthfulness. The point is not to give the best, most thoughtful or most honest answer, but to give the answer that makes it the most difficult for senators to vote against you. It's as if we expect nominees to demonstrate, one last time, everything we hate and distrust about lawyers before they don their priestly robes.
Nobody is shocked that Sotomayor has revealed herself to be the liberal everyone knew her to be. But the fact that everyone was in on the lie is just further evidence of the sham Supreme Court hearings have become. They are a nonviolent and fairly bloodless cousin to totalitarian show trials, where everyone follows a script and politicians pretend to be "gravely concerned" and "shocked" upon "discovering" things they already knew.
And that's why Kagan should be the hero of this tale. She has vociferously argued that the "Bork hearings were great ... the best thing that ever happened to constitutional democracy." She has lamented how, ever since, the hearings process has become nothing more that "a repetition of platitudes." Kagan once implored senators to dig deep into the nominee's "constitutional views and commitments."
Alas, it doesn't look like Kagan will be following the Kagan standard. On Tuesday morning she distanced herself as best she could from those views. And when asked by Sen. Jeff Sessions whether she is a "legal progressive" -- something pretty much all objective observers and her own friends and former colleagues know her to be -- the brilliant and scholarly Kagan claimed to have no idea what the term even means.
After his rejection by the Senate, Bork wrote a masterful book, "The Tempting of America: The Political Seduction of the Law." The title of the book on Kagan might well be titled "The Tempting of Kagan: The Political Seduction of the Process."
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