The chummy, Happy Jack Squirrel time atmosphere of Elena Kagan's confirmation hearing is a little hard to take. Yes, she is "likable enough," to borrow Barack Obama's phrase about Hillary Clinton, but that won't make her any less destructive on the Supreme Court. If anything, it will make her more so.
Though generally pleasant, she has seemed a bit cocky and dishonest at times during the hearing. Notice that she is quite the confident expert on conscientious judging for someone who has never done any. And somehow Thurgood Marshall's doting pupil has suddenly become an "originalist."
She offered up several apple-polishing disclaimers about judicial restraint to a few skeptical senators, but she never actually repudiated her staggeringly inane tribute to Thurgood Marshall in the Texas Law Review. "Our modern constitution is his," she burbled with approval in that article. It is a "thing of glory."
Even in the hearing on Tuesday, where she was clearly working hard to fog up fundamental issues as much as possible, she asserted that the meaning of the Constitution can change "outside" of the amendment process. In other words, activist judges can change it. To the extent that she articulated her understanding of "originalism," it sounded very slippery: not fidelity to the meaning of the Constitution, but to the "intent" of it.
What, exactly, does "intent" mean? Anything Thurgoodian justices want it to mean. True, she said that judges are bound by the specific requirements that the Founding Fathers placed in the Constitution, such as the Senate's age requirement of 30 (yet one wonders: Isn't 30 the new 20? Shouldn't that requirement "evolve" too under the superior understanding of modern justices?). But she also implied that judges can freewheel with less obvious parts of the Constitution when the country is likely to enjoy the results of that activism (as with civil rights).
This elastic approach explains her inexplicable comment that a judge can be at the same time an originalist and a living constitutionalist. It is not an "either or" proposition, she said to Senator Herbert Kohl, who is an owner of the Milwaukee Bucks.
Kohl's questioning, by the way, was impressive in its workmanlike stupidity. His baldly simple questions to Kagan sounded like the sort of questions he probably asks of concession-stand applicants at his arena. I almost expected him to ask her, "Where do you see yourself in five years?" But a better question in her case is: Where do you see the "living" Constitution in five years? Or thirty, for that matter. She is sure to roost on the court for decades.
Don't be surprised when the polished and polite Elena Kagan finds a constitutional right to gay marriage within the shadows and penumbras of Thurgood Marshall's Constitution. As the dean of Harvard Law School, she made it clear that she thinks homosexuals have an inalienable right to change the ethos of the United States military. If that's a right in her mind, then marriage, which is an even more basic claim than access to soldiering, has to be one too.
The sparring with Senator Sessions over her decision as Harvard dean to kick military recruiters off the main campus due to what she considered the "moral injustice" of Bill Clinton's Don't Ask, Don't Tell policy was amazingly dishonest and oily. She loves the "military," Kagan insisted to Sessions, and no one should use her Harvard policy to infer differently.
So, as it were, she hates a military policy but not the military; she hates the sin but not the sinner. When have gay-rights activists ever accepted that line of reasoning before? She treated military recruiters in the two-faced way she claims conservative segments of society treat homosexuals -- giving them second-class status while professing respect for them. This outrageous treatment of the military would have sunk a nominee in the past; now almost no one seems to care.
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