Michael C. Dorf

What's in Store for Elena Kagan? An Imagined Confirmation Hearing

By MICHAEL C. DORF
Tuesday, June 15, 2010

By MICHAEL C. DORF

The Senate confirmation hearing on the nomination of Elena Kagan to the Supreme Court will not begin until the end of the month, but I have managed to obtain an advance copy of the script. (What? You didn't think they ad-libbed this stuff, did you?)

Sen. Leahy : The Chair calls this hearing to order and recognizes Solicitor General Elena Kagan for an opening statement.

SG Kagan : Thank you Mr. Chairman. It is an honor and a privilege to come before you to execute the "pincer movement" I so admired in Justice Ginsburg's confirmation hearing, long before I realized that I might some day be nominated for this position. As I wrote in 1995: "When asked a specific question on a constitutional issue, Ginsburg replied . . . that an answer might forecast a vote and thus contravene the norm of judicial impartiality . . . But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. " The idea that I could be just days away from serving alongside Justice Ginsburg gives me goosebumps.

Sen. Sessions : Well, Miss Kagan, I find it curious that you happily use the martial metaphor of a pincer movement. Back when you were dean at Harvard, you wouldn't even allow the U.S. military to set foot on campus.

Sen. Leahy : Does the Senator from Alabama have a question for the nominee?

Sen. Sessions : I do. Miss Kagan, why do you hate America?

SG Kagan : I assure you Senator, I do not . . .

Sen. Specter : General Kagan, if I may interrupt, I . . .

Sen. Sessions : I object to the appellation "General" for a woman who not only has never served in the U.S. military but, as we know, has contempt for our armed forces.

Sen. Specter : It is customary in America to refer to the Solicitor General as simply "General," just as in Scotland it is possible to return a verdict of "not proved." It's also possible here in the Senate, as I believe that I proved in 1999.

Sen. Leahy : Does the Senator from Pennsylvania have a question for the nominee?

Sen. Specter : Ms. Kagan, when you were nominated to be SG, I voted against you on the ground that you were insufficiently experienced as an appellate advocate. Could you tell me about all the relevant experience you've had since then?

SG Kagan : Well, I have actually been the Solicitor General, you know, arguing cases before the Supreme Court.

Sen. Specter : That does seem relevant. But what about the fact that when I voted against your confirmation for SG, I was a Republican and now, I'm a Democrat? Of course, I only became a Democrat to maintain my political viability, and we see that that didn't really pan out.

Sen. Hatch : Speaking of viability, Ms. Kagan, would you agree that in upholding the federal Partial Birth Abortion Ban Act, the Supreme Court in Gonzales v. Carhart has effectively undermined the viability line, so that Roe v. Wade is no longer a binding precedent?

SG Kagan : I'm afraid that the issue of the precedential value of Roe could come before the Court, and so I can't speak to that question without creating the appearance of pre-judging it.

Sen. Hatch : I'm not asking how you would decide any particular case. I'm asking about the general question of whether an approach in a later case can undermine the precedential authority of an earlier case.

SG Kagan : But I can't answer such a question in the abstract. Judges and lawyers work with concrete cases that begin in facts.

Sen. Hatch : Is that the pincer movement you were talking about?

Vice President Biden : With all due respect, as my dear mother likes to say, I got there first. It's not a "pincer movement." It's a "kabuki dance." That's what I called it. You can look it up. And while you're doing that, General Kagan, here's another thing you can look up. There's a genuine intellectual debate going on in our country today over whether the Constitution is going to continue to expand the protections of the right to privacy, continue to empower the federal government to protect the powerless. And it's a big debate. All you got to do is turn to any Web site . . .

Sen. Leahy : Mr. Vice President, you are no longer a member of this Committee.

Vice President Biden : The hell I'm not. You ain't taking my shotguns, so don't peddle that malarkey. If you try to fool with my Beretta, you've got a problem.

Sen. Cornyn: What about that, Ms. Kagan? Do you accept as settled law the Supreme Court holding that the Second Amendment protects an individual right?

SG Kagan : I do.

Sen. Cornyn: Is that some sort of veiled reference to marriage? Are you saying that if you're confirmed, you'll vote to invent a right of homosexual marriage?

SG Kagan : I would listen to the arguments . . .

Sen. Coburn : I think you have some splainin' to do.

SG Kagan : Uhm . . .

Sen. Graham : Ms. Kagan, unless you have a complete meltdown, you are going to be confirmed.

Sen. Whitehouse : Ms. Kagan, do you like kittens?

SG Kagan : Yes. I mean I'm a little allergic, but that's not really a matter of like or dislike.

Sen. Klobuchar : How about puppies?

SG Kagan : Sure. Nothing against them.

Sen. Graham : But nothing for them either? That sounds like a meltdown to me!

Sen. Leahy : Does the Senator from South Carolina have a question for the nominee?

Sen. Schumer : I would just like to interrupt to point out that I haven't said anything yet, which is terribly unfair. I mean this Committee has two Democratic members from Minnesota, and yet I haven't had a chance to ask a question.

Sen. Leahy : Very well. Would the Senator from New York like to ask a question?

Sen. Schumer : No, not really. I'll yield the balance of my time to the junior Senator from Minnesota, since he's really from the Upper West Side of Manhattan anyway.

Sen. Franken : Ms. Kagan, did you watch "Perry Mason" when you were growing up?

SG Kagan : Occasionally.

Sen. Franken : What about "L.A. Law"?

SG Kagan : Well, I was a young attorney and law professor when that show was running.

Sen. Franken : Ah, so the show would have really spoken to you. Would you say that you identified more with the character of Ann Kelsey, memorably portrayed by Jill Eikenberry, or with the Grace Van Owen character, equally memorably portrayed by Susan Dey?

SG Kagan : I don't know, maybe more with the younger characters?

Sen. Franken : You mean like Abby Perkins? She was great. Whatever happened to the actress who played her? Michele Greene is her name, I think.

Sen. Leahy : Does the junior Senator from Minnesota have a question for the nominee?

Sen. Franken : That was my question. Whatever happened to Michele Greene? I honestly don't know.

SG Kagan : Neither do I, Senator.

Sen. Franken : Well, could some staffer check it out on Wikipedia or something? Boy, this job is cool.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

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