Supreme Court nom­i­nee’s con­fir­ma­tion re­mains on track

Ka­gan finds her­self in po­lit­i­cal de­bate over veg­eta­bles

Austin American-Statesman - - WORLD & NATION - By James Oliphant

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.

Alex Bran­don

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.

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