Supreme Court nominee’s confirmation remains on track
Kagan finds herself in political debate over vegetables
WASHINGTON — After completing two days of testimony before the Senate Judiciary Committee that was alert, thoughtful, and punctuated with flashes of wit, Elena Kagan seems almost certain to become the nation’s 112th justice on the Supreme Court. But one minor slip — on a question about, of all things, fruits and vegetables — gave Republicans at least one chance to benefit politically from the hearings.
As she demonstrated in the two days of testimony that ended Wednesday, Kagan is a gifted scholar, a savvy politician, and a talented administrator, who spent hours preparing for this week’s appearances before the committee. But perhaps no amount of cramming could have readied her for the very simple-sounding question asked of her by Sen. Tom Coburn, R-Okla. Can the government, he wondered, pass a law forcing Americans to eat fruits and vegetables?
To Kagan, at first blush, the question must have seemed absurd, maybe even a joke. “It sounds like a dumb law,” she replied, off the cuff. Then, realizing Coburn was serious, she segued into the sort of cautious, contextual analysis that she has employed to answer most of the questions asked of her during the past two days.
But she had fallen into Coburn’s trap by answering more like the law professor she is than by simply responding like most people would. She never just said: “Of course it can’t.”
Within hours, a video detailing the exchange was atop the Drudge Report website, hundreds of thousands had viewed it on YouTube, and conservatives were having a field day. Her equivocation fit ideally with the narrative Republicans are trying to fashion during these hearings — a story of a federal government out of control and a Congress running amuck.
For Kagan, it was a rare misstep in what proved to be an uneventful two days of testimony. The confirmation hearing for President Barack Obama’s choice to replace the retired John Paul Stevens will continue with other witnesses, both supportive and critical, today. Even top Republicans conceded that her confirmation appeared likely.
A final Senate vote on Kagan’s confirmation is expected by early August.
GOP senators such as John Cornyn of Texas said that her beliefs would not doom her nomination, unless she indicated that she wouldn’t be able to set them aside as a justice.
Instead of trying to block her, Republicans on the committee asked questions de- signed to strike chords with voters in the coming fall congressional elections, to better outline an us-versus-them argument against Democratic contenders. Coburn’s seemingly innocuous inquiry was the perfect example: the fruits and vegetables served as a metaphor for the requirement, enacted as part of the health care overhaul passed by Congress earlier this year, that all Americans purchase health insurance. Coburn was essentially asking Kagan whether there was any limit to the reach of congressional power.
Coburn argued that Kagan was saying that members of Congress “have the right to tell us anything we want — any- thing the federal government tells you to do, you’re going to do.”
Beyond that, however, Kagan worked studiously to avoid handing the GOP red meat. On Wednesday, she refused, for example, to state her position on the so-called partial-birth abortion procedure advocated in the 1990s by the Clinton administration, even though she worked as an adviser to the president.
“I had no agenda when it came to this issue,” she told Sen. Lindsey Graham, R-S.C.
Graham appeared incredulous. “I certainly have an agenda when it comes to abortion,” he said. “You can be pro-choice and be just as patriotic as I am. You can be just as religious as anybody I know.”
Throughout the hearings, Kagan maintained that conservative outcomes in cases involving gun rights and campaign finance are “settled law.”
Republicans were skeptical. One reason was Kagan’s surprising honesty about her politics. Unlike Justice Sonia Sotomayor, who testified before the committee last year, she freely admitted to a partisan affiliation. “I’ve been a Democrat all my life,” she said. She also, after some hesitancy, conceded to being a “progressive” although the term went undefined.
“The Republicans have made progress in painting her as a liberal on some core issues for conservatives like abortion,” said Thomas Goldstein, a Supreme Court analyst who attended the hearing.
Supreme Court nominee Elena Kagan wrapped up her last day of testimony before the Senate Judiciary Committee on Wednesday. Other witnesses are to testify at her confirmation hearing today.