The Kagan hearings, a last look

The concluding posts in the Federalist Society’s debate over the Kagan confirmation hearings will soon be posted. Here is mine:

Perhaps the most interesting thing about the Kagan hearings is how little interest they seem to have provoked. My impression is that these hearings were covered and followed appreciably less intensely than the last three.
If so, this is not because there was nothing to cover or follow. Kagan’s stance on military recruiting at Harvard involved the intersection of law, homosexuality, and the military (national security, some would say [note: including me]). And her behind the scenes re-write of what purported to be a pristine scientific document surely would have passed for a mini-scandal had it been executed by a non-liberal nominee.
I’m not sure how to explain what I take to be the lack of interest. Perhaps after three of these events in six years, involving nominees by presidents from both parties, whatever excitement was thought to attach to confirmation hearings has disappeared.
The other thing I found interesting was the degree to which Democrats used the hearings to attack the “Roberts Court.” I don’t recall either party going this much on the offensive in this respect during the last three sets of hearings.
What explains this development? My view is that liberal Democratic politicians (and members of their base) think they lost the argument during the last three confirmation battles. John Roberts and Samuel Alito “played” well, and Sonia Sotomayor sounded like a conservative. The resulting frustration probably induced the Democrats to be more aggressive in general and, in particular, to try to discredit Roberts and Alito by claiming they are not the jurists they appeared to be when they made such a good impression on the public.
I’m pretty sure the strategy didn’t work. First, as I said, these hearings seem not to have attracted much attention. Second, Senate Democrats are unpopular right now, so their attacks on members of a more popular institution are not likely to resonate. Third, those who watched until the bitter end saw Ed Whelan, Robert Alt and others persuasively counter the alleged examples of “judicial activism” by the Roberts Court relied upon by the Democrats — e.g., the Ledbetter case, which the Democrats continue grossly to mischaracterize.
There’s a chance that the Democrats’ latest partisan innovation will come back to haunt them. Justice Sotomayor and soon-to-be Justice Kagan are on record having articulated a traditional, fairly minimalist view of the role of judges. If a liberal majority were to emerge — or even if the liberals prevail in a few high profile cases — the charge of “deceptive testimony” could be turned against them. And if Barack Obama is still president at that time, he likely will receive some of the blame.


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