Whether it’s described as Kabuki Theater, a speechifying opportunity for senators or the most words murdered to say nothing, hearings will open on the nomination of Elena Kagan to the Supreme Court of the United States.  Whether she’s your dream date or not, there is no serious challenge to her qualifications for the seat, to become one of the Nine who control a co-equal branch of government.  The Senate need not like her, her judicial philosophy or even her answers to their questions. 

The only thing that Elena Kagan needs to do is not blow it.  The only way a nominee can blow it is to let words escape her mouth that either demonstrate an incompetence or bias that outrages people.  Given the thousand ways to answer questions without saying anything, this should present a problem.

Many in the blawgosphere have posed questions that they would like answered. Real answers, not non-denial denials that give the appearance of responding without responding.  Jeff Gamso does a wrap up of the criminal law questions, adding in a few of his own.  

Norm Pattis takes the most interesting approach, using his fictional trench lawyer nominee, Gerry Darrow, to juxtapose what could have been with what is.  His flight of fantasy may be wistful, but it serves to remind us that there are other flavors besides plain vanilla.  Gerry Darrow would answer the Senators questions with candor, because he can’t fathom a reason not to.  

Darrow’s free-wheeling style and easy-going demeanor are expected to mark a contrast to Kagan’s reserve and polish.

Of course, such an approach would be intolerable.  If it can’t be tolerated in the blawgosphere, how can it be tolerated in a Senate hearing room?  A Darrow nomination hearing would prove us all hypocrites.  No candidate for the Supreme Court will meet our ideal. 

No one is throwing any “I  ♥ Elena” parties.  Too liberal for conservatives.  Too conservative for liberals.  Too inexperienced, too inside, too Harvard.  She sounds like the personification of a good settlement.  Nobody is happy.  But before she’s handed the waiting robe, she must go through hearings.

More than most, Elena Kagan is a scholar of nomination hearings.  Via Liptak at the New York Times :

Ms. Kagan is likely to get questions about her article in The University of Chicago Law Review, in which she celebrated the 1987 confirmation hearings of Robert H. Bork for their extensive exploration of his understanding of the Constitution.

“The ratio of posturing and hyperbole to substantive discussion was much lower than that to which the American citizenry has become accustomed,” Ms. Kagan wrote. But Judge Bork’s candor hurt him, and the Senate rejected his nomination.

From the perspective of the nominee, the point of the hearings are to make it through unscathed and ultimately be approved.  While the hearings could be used as a soapbox to expound upon what’s right and wrong with the law, the soapbox is minuscule compared with the one one a Supreme Court justice stands on.  The public wants candor from the nominee like the public wants a confession from an accused murderer.  It’s in neither one’s best interest to satisfy the public’s wants.  Nothing good (for them) can come of it.

It’s hard, no impossible, for me to get overly worked up over these hearings.  My quest for a seat on the big bench was doomed, as one would expect if not desire.  But had it been real, and had a president called me up and asked whether I was interested in the gig, I would have prepared for Senate confirmation hearings the way Elena Kagan has.  The way Sonia Sotomayor did.  What purpose would there be in talking smack to the Senate, in front of the TV cameras?  It’s an invitation to get Borked.

Though I’m no academic, and lack the requisite Ivy law school degree, government service, powerful friends, the stuff I’ve written here provides a pretty good idea of my positions, my intellectual prowess (or lack thereof), and philosophy.  One might think that my views would be embraced by other criminal defense lawyers and others who value freedom and civil rights over order and safety.  Yet they don’t. 

The president’s nominee is Elena Kagan.  She will be confirmed.  Had the nominee been Gerry Darrow, he would not be confirmed.  And criminal defense lawyers would be the first to march on the confirmation hearings carrying torches and pitchforks.  He, in his candor, would never meet their expectations of their ideal.