The Generalissima Dances

They're now underway, and it's clear that I was right.  The confirmation hearings are about as vapid as you might expect.

Anything the Supreme Court has ever decided is, the Generalissima tells us, "precedent" and "settled law."  No one has pressed her particularly hard, and she's declined to give any sort of meaningful answer, on whether or when "precedent" and "settled law" should give way - be sharply limited or broadly expanded or overruled.

The long-time professor won't "grade" the work of her she-hopes-will-soon-be colleagues, so we can't actually learn whether she thinks any of those matters of "precedent" and "settled law" were right.  (She does seem to think that Brown v. Board of Education was right and that Plessy v. Ferguson was wrong, but she hasn't been forthcoming about why that is.)

As for actual legal matters, she's happy to explain what the Court said in this or that opinion, but she's unwilling to say whether she thinks any of that is right, and since substantive matters may come before the Court for the first time or again (however unlikely that may be - re Bush v. Gore, for instance, which surely can't, she says the Court might someday again need to decide whether to intervene in an election), why she certainly can't express a view on them.

So, as always at these adventures, we learn nothing except how charming the candidate can be while refusing to answer questions.  On that basis, she's a winner.  She banters some (bits are witty); deflects coyly; blushed (slightly - according to scotusblog's live blogging - at one of her own self-deprecating jokes; can be tediously pedantic; and knows how to bob and weave.

Senator Sessions assailed her.  She did not give ground.  Others praised her, tossed her softballs, asked her to explain away things she'd previously said or written, and made their own speeches - often entirely without questions at the end.

She told us that the positions she took as an advocate (that is, in her role as Generalissima) weren't necessarily her own - though she convinced herself of them before taking her position arguing them in the well at SCOTUS, something every good advocate does.  She told us that although she worked for and deeply admired Thurgood Marshall, she is not he.  She told us that when she wrote for him or as an advisor to Bill Clinton or whatever, she was doing what they wanted, whatever she might have thought.  She told us that what she took from her father, a people's lawyer, was a love of the law.  She did not say that what she took from him was a love of the people or any understanding of how the law could be used.  She said that the way to ensure public respect for the Court was to recuse herself when proper.

When this isn't empty, it's fatuous.

Norm Pattis says this is all sufficient basis for a "bipartisan filibuster."

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do  justifies a bipartisan filibuster of her of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.

The he rattles off a list of things he wants to know.  (The list is, of course, not exclusive.  We could all add to it.)  They're things I want to know, too.  So does any Senator who's honest about it.  So should the Pres who nominates.  So should the American People.

They are, of course, things we won't learn.

And there's no excuse.

She doesn't want to "grade" the work of those she hopes will be her future colleagues.  I don't blame her.  It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about.

But so what?  She isn't running for Generalissima Congeniality.  She's running for a seat as Associate Justice on the Supreme Court of the United States.  Her efforts toward collegiality cannot trump the Senate's right to ask and learn before confirming.  And certainly should not trump the public's right to know.

And that whole, I can't express a view on any issue that may come before the Court (which is, of course, any issue) because it would be "inappropriate."  Why?  What would be inappropriate about it?

OK, I agree that it would be inappropriate to promise a particular vote in advance of the case being put before the Court.  When she must decide X, it should be on the specifics of the case, the record, the details of the question presented, the briefs and arguments, and the precisely relevant laws.  To promise now what she might say then would be wrong, because it means she won't do her job then.

But to say what she thinks?  Now?  About the issue itself?  In general terms?  There's no reason to refuse.

Justice Scalia has made clear his general view of the constitutional right to abortion.  So has Justice Ginsburg.  So have the rest of them.  Are they, thereby, disqualified from addressing the question when it next comes to the Court?  If they are, then they should disqualify themselves from just about every case.  The Court would be out of business in two years.

If a sitting Justice can express a view in one case and still vote in the next, surely a not-Justice can do that.

The reason to refuse is, of course, political.  It's harder to get confirmed if you've actually taken a stand on something.  You might just piss off a necessary supporter.  Though you might, equally, gain a surprise ally.  Depending, of course, on what your stand is.  Them's the breaks.

Is she qualified to sit on the Court?  Sure.  So am I.  So are you.  (Read the Constitution.  There are no qualifications for Supreme Court justices.)  Does she deserve to sit there?  Maybe.  But we don't know.  We won't learn.  She won't talk.  They won't make her.

I've said all this before.  I said it last year when the subject was Sonia Sotomayor's confirmation hearings.  I'll say it next time when the subject is whoever's.  I'm getting tired of it.

I'll be back doing it again, anyhow.