Kagan’s “Modest” Day 1

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Day 1 is done in Solicitor General Elena Kagan’s hearings to become the 112th Supreme Court justice. Thus far there has been relatively little about Kagan herself. In between memorials for Senator Bobby Byrd and Sandra Day O’Connor’s Ruth Bader Ginsburg’s husband, Republicans griped that no matter what Kagan says, they don’t think they’ll be able to trust her responses given their experience with Sonia Sotomayor last year. Sotomayor’s answers, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, were bland and reassuring. “And now she’s demonstrated herself to be one of the most liberal activist justices on the court,” Sessions told reporters during a break in Monday’s proceedings. Kagan, he asserted, would do the same no matter what questions they pose of her.

Democratic senators, meanwhile, took the opportunity to slam the Supreme Court. As Senate Judiciary Committee Chairman Patrick Leahy put it:

The courts are not subsidiaries of any political party or interest groups, and our judges should not be partisans.

That’s why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and why it shook, in many people’s minds throughout this country, the credibility of the court.

And it’s why the Supreme Court’s recent decision in Citizens United, in which five conservative justices rejected the court’s own precedent, rejected the bipartisan law enacted by Congress, rejected 100 years of legal development in order to open the door for massive corporate spending on elections was such a jolt to the system.

The American people live in a real world of great challenges. The Supreme Court needs to function in that real world within the constraints of our Constitution.

There were, all told, eight mentions of Citizen’s United in today’s opening statements, compared to, for example, zero mentions of Don’t Ask Don’t Tell, if the search function on CQ’s transcriptwire is working properly.

If Sotomayor’s hearing was all about “empathy,” Kagan’s thus far has been about “modesty.” To Democrats, modesty has come to mean the antithesis of an arrogant, conservative Supreme Court.

“We’ve had nominations who sat where you sit, not too long ago, who said they would not jolt the system; modesty; and then they’ve delivered jolts to the system,” Senator Arlen Specter, a Pennsylvania Democrat, lamented.

“There will be questions raised, as well, about modesty and humility in your role,” warned Senator Dick Durbin, an Illinois Democrat.

Kagan herself conspicuously twice pledged modesty in her opening statement:

No matter who the lawyer or who the client, the court relentlessly hones in on the merits of every claim and its support in law and precedent. And because this is so, I always come away from my arguments at the court with a renewed appreciation of the commitment of each justice to reason and principle, a commitment that defines what it means to live in a nation under law.

For these reasons, the Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one, properly deferential to the decisions of the American people and their elected representatives.


I will make no pledges this week other than this one, that if confirmed, I will remember and abide by all these lessons. I will listen hard to every party before the court and to each of my colleagues. I will work hard, and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.

Tomorrow begins the question and answer session. If the GOP has even the tiniest sliver of a case for mounting a credible filibuster it must turn the conversation back to Kagan’s suitability for the court. Thus far, their case is far from being made. Indeed, as Senator Orrin Hatch, a Utah Republican, remarked to Kagan: “I suspect this is probably your last confirmation hearing.”