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Clarence Page
Elena Kagan probably will be confirmed, if she can resist the temptation to follow her own advice.
Her advice was offered in a 1995 book review that she wrote for the
You may recall how accusations of right-wing radicalism against Bork, led by Democratic Sen. Edward Kennedy of Massachusetts, were harsh enough to add "bork" to dictionaries as a verb for character assassination.
Then came the Clarence Thomas confirmation hearings, which he barely survived by countering attacks against his character and conservatism with political theater of his own, a gripping narrative of a hardscrabble upbringing as a poor black kid in the segregated South now subjected to "a high-tech lynching" because he "thinks for himself."
Republicans got their payback a few years later by blocking President Bill Clinton's civil rights division nominee Lani Guinier just as unfairly as a radical left-liberal lover of racial quotas.
Small wonder that Carter, a Yale Law professor and -- like Kagan -- a former clerk to the late Justice Thurgood Marshall, called the process a mess. Yet, messy as it may have been, the young up-and-coming Kagan expressed a preference for Bork's interrogation over the "official lovefests" she saw in hearings for Stephen Breyer and Ruth Bader Ginsburg.
While noting she did not mean to argue that nominees "must answer any question whatsoever," she deplored the "road of silence" on which "Carter and recent nominees would take us -- to a place where comment of any kind on any issue that might bear in any way on any case that might at any time come before the Court is thought inappropriate."
Her words sounds doubly ironic now. As everyone who has been paying attention knows, one of Kagan's big pluses as a pick for the
By all early indications, Kagan looks like the very model of a safe pick by President Obama. She has accumulated an impressive resume as solicitor general and the first woman to become dean of the
Today's Elena Kagan sounds a bit more reserved about educating the public in her confirmation hearings, judging by her hearings for her current job. Pennsylvania Sen. Arlen Spector, then the ranking Republican member of the Judiciary Committee, described an older, more pragmatic Kagan. He voted against her confirmation after complaining that, in hearings and one-on-one meetings, she was not forthcoming enough. "After the long process I have described," Spector said at the time, "I still don't know very much about Dean Kagan." Sounds like she's learned the game.
That's too bad, since the younger Kagan, like Carter, raised good points. For all their flaws, the Bork hearings did present "a serious discussion" that "at once educated the public and allowed it to determine whether the nominee would move the court in the proper direction," as Kagan wrote. Subsequent hearings, she said, have presented to the public a "vapid and hollow charade" that "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government." Yup. Call me cynical.
Carter and Kagan are unfortunately right. The process has deteriorated into a form of political circus. Unfortunately, the people who can fix it also happen to be its star performers.
Available at Amazon.com:
The Virtues of Mendacity: On Lying in Politics
Bush on the Home Front: Domestic Policy Triumphs and Setbacks
The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House
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Elena Kagan Faces the Panel She Once Panned