The Justice of Oz: As Kagan shows, you need to lose your heart, brain, & courage to get on SCOTUS

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Elena Kagan is scheduled to appear before the Senate Judiciary Committee on Monday, so now is the time for depressed Supreme Court correspondents to write their depressing articles about how hollow and pointless the upcoming Supreme Court confirmation hearings will be. After which we will pack up our laptops, our notepads, and our small silver flasks, and plod off to cover them again. This year's festivities are particularly rich with irony, as the nominee herself has beaten us to the punch, having predicted 15 years ago that her hearing would be a hollow, pointless sham.

Kagan's sharp review of Yale law professor Stephen L. Carter's 1995 book, The Confirmation Mess, has gleaned some media attention because of her complaint that confirmation hearings, and especially Supreme Court confirmation hearings, have become—as she puts it—a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." This puts her in the awkward position of having to either repeat those platitudes and anecdotes or fail to be confirmed altogether.

What Kagan advocated in that law review article is what everyone but the current Supreme Court nominee always says they seek in a confirmation proceeding: a return to "the famous national seminar on constitutional law" (Carter's words) that was the once-in-a-lifetime Robert Bork hearing. But whereas Carter's book bemoaned a political climate in which the brutal nastiness of the Bork hearings had become possible, Kagan celebrated the dizzying pedagogical heights those hearings achieved. "Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed," she wrote. In short, the Bork hearing was substantive, it was nuanced, and everyone came away grateful for the edifying national conversation about the constitution—everyone, that is, but Judge Bork, who, upon openly discussing constitutional philosophy, was not permitted to touch the Constitution with a 10-foot pole.

http://www.slate.com/id/2257815/


Not sure I agree with all the commentary but the title was excellent.