SCOTUS Watch: The Teflon Dean

In a 1995 article for the University of Chicago Law Review, then-professor Elena Kagan called the Senate confirmation process for Supreme Court nominees a “vapid and hollow charade.” And after keeping at least one eye glued to C-SPAN for the better part of this week, I couldn’t agree more.

Kagan’s own hearings, which wrapped up Wednesday, were little more than an obligatory masquerade show. We all knew before they began that Kagan is a shoo-in for the high court. Despite the best efforts of her opponents to stir up controversy, no bombshells ever came out of the thousands upon thousands of memos and e-mails she wrote in her early career. And though some groups on the right would have us believe that her college thesis indicated she was a Commie sympathizer, in reality it . . . well . . . didn’t. 

Every step of the way, Kagan truly has proved to be the Teflon nominee. 

So even as senators on the Judiciary Committee questioned her again and again about the few mini-controversies that emerged during this process—the barring of military recruiters from using Harvard Law’s career-services office, a memo on partial-birth abortion, her praise of an Israeli judge—nothing stuck.

Kagan was the picture of poise and composure, and she was surprisingly funny. Even Senator Arlen Specter—whose constant interruptions and generally curmudgeonly demeanor made him the hands-down winner of the award for biggest grump on the Senate panel—couldn’t resist her quick wit. During an exchange about whether TV cameras should be allowed into the Supreme Court, Kagan quipped that if that were to happen, she’d need to get her hair done more often. Specter commended her for the comment, saying, “You’ve shown a really admirable sense of humor.” (Check out some other laugh-worthy moments here.)

So now that the hearings are over, here are some take-home lessons:

1. Kagan is a hoot. In fact, if this whole justice thing turns out not to be her bag, she could probably find work as a regular at the DC Improv.

2. Senators like to talk. A lot. And in sound bites that’ll come in handy when it’s time to produce campaign ads.

3. Given that the same questions and themes kept recurring during the hearings, this would’ve been the perfect opportunity for a drinking game. So just in case someone out there TiVo’d the hearings and can rewatch them—which, given that this is Washington, someone definitely did—I started to think of one:

• Every time you hear the phrase “activist judge” or “judicial activism,” drink. But if you can come up with your own definition for what it means to be an activist judge—something Senator Lindsey Graham would require you to do—you can get out of drinking and choose someone else in the room to drink double.

• Every time Senator Specter interrupts Kagan, drink.

• Drink if you hear any of the following: precedent, dean, Commerce Clause, or Office of Career Services.

• Drink every time you hear the acronym ACOG. Get out of drinking if, off the top of your head, you can say what it stands for.

While we’re at it, we should toast Elena Kagan, who’s well on her way to becoming the fourth female Supreme Court justice in US history. The Judiciary Committee will vote on her nomination after the Fourth of July break, and her nomination will be sent to the full Senate later this month. 

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Marisa M. Kashino

Senior Editor

Marisa M. Kashino joined Washingtonian in 2009 as a staff writer, and became a senior editor in 2014. She was previously a reporter for Legal Times and the National Law Journal. She has recently written about the Marriott family’s civil war and the 50-year rebirth of 14th Street, and reported the definitive oral history of the Lorena and John Wayne Bobbitt case. She lives in Northeast DC with her husband, two dogs, and two cats.