The chal­lenge for a Supreme Court nom­i­nee? Be­ing an un-Bork­able can­di­date

Austin American-Statesman - - OPINION -

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.

How­ever, 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 U.S. So­lic­i­tor Gen­eral Elena Ka­gan, Pres­i­dent Barack Obama’s nom­i­nee for the Supreme Court, an­swers ques­tions dur­ing her sec­ond day be­fore the Se­nate Ju­di­ciary Com­mit­tee on Tues­day. made it sound as though she was open to an ex­pan­sive read­ing of the Sec­ond Amend­ment when ev­ery­one knew she wasn’t.

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 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 fairly blood­less cousin to to­tal­i­tar­ian show tri­als, where ev­ery­one fol­lows a script and politi­cians pre­tend to be “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, Ka­gan hasn’t fol­lowed the Ka­gan stan­dard. On Tues­day, she dis­tanced her­self as best she could from those views. And when asked by Sen. Jeff Ses­sions whether she is a “le­gal pro­gres­sive,” the bril­liant and schol­arly Ka­gan claimed to have no idea what the term even means.

Af­ter his re­jec­tion by the Se­nate, Bork wrote “The Tempt­ing of Amer­ica: The Po­lit­i­cal Se­duc­tion of the Law.” The book on Ka­gan might well be ti­tled “The Tempt­ing of Ka­gan: The Po­lit­i­cal Se­duc­tion of the Process.”

Rafael Suanes

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