LIBERTY AND ELENA, FOR ALL

<>by H. N. Burdett

Barring an unforeseen revelation of evidence against Elena Kagan that would cause Caligula or even Lady Gaga to blush, when the Supreme Court opens its fall session its composition will be a religious bigot's nightmare: six Catholics and three Jews.

When the Senate Judiciary Committee completed its interrogation of President Obama's intellectually dexterous nominee, there was no need to mop up any of her blood from the floor, only the sweat and a few tears of frustration left by her befuddled inquisitors.

Behind closed doors, committee members doubtless will grouse about their inability to distract Kagan from her meticulously crafted script: leave no paper trail, swear allegiance to judicial precedence, and refuse to answer any and all questions, including directions to the restrooms, on grounds that they might come up in a future case before the court.

It is a scenario written, produced and originally performed by none other than Chief Justice John Roberts, the self-styled "umpire" whose only concession to liberalism, it turns out, is in the strike zone he generously expands for those of the corporate class who appear before him.

In deflecting virtually every substantive query that might reveal even a microscopic hint of activism, Kagan demonstrated mental adroitness equivalent to the shot-blocking prowess of that seven-foot-six-inch National Basketball Association phenomenon, the late Manute Bol.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, was reduced to mumbling his displeasure with her decision, as dean of the Harvard Law School, to briefly bar military recruiters from use of the school's counseling office. He said she was "punishing the military" for its "don't ask, don't tell" ban on gay men, lesbians and bisexuals serving in the armed forces. Such small potatoes would be insufficient for a decent salad. Sessions was obviously not up to the task of crossing swords with the likes of a determinedly defensive Kagan.

Better equipped for the task were a former prosecutor, Sen. Arlen Specter, the recently converted lame duck Democrat from Pennsylvania, and Sen. Tom Coburn, the doctrinaire conservative from Oklahoma who believes activists have no place on the nation's highest court unless, of course, their names are Roberts, Scalia, Alito and Thomas.

Specter's moderate Congressional voting record has been the bane of his longtime Republican brethren, ultimately forcing him to switch parties in a doomed effort to salvage his longtime seat in the upper chamber. He will be mostly remembered, however, for the brutal zeal with which he went after Anita Hill, the law professor whose allegations 19 years ago of sexually inappropriate conduct threatened Justice Clarence Thomas's confirmation to the nation's highest court.

But when it came to Kagan, Specter simply had no evidence to pursue, not even an indiscreet memorandum or two, much less a smoking Saturday Night Special. Rather than the relentless bloodhound who barked and growled at Ms. Hill with the obsessive resolve of Javert in pursuit of Valjean, the aging senator appeared to be merely going through the motions for his last televised hurrah.

Though Coburn displayed more spunk and bite than most of his colleagues, the junior senator from the Sooner state was equally unsuccessful in even denting Kagan's impenetrable armor. To him and to all, she averred ad nauseam that she would leave her politics, if any, outside the courtroom door, that her decisions would be rendered in accordance with the law as it applies to the individual case rather than on the basis of ideology, philosophy or her daily horoscope.

In sum, Kagan told the panel what it wants to hear but never believes when it does hear it. Nothing is more exasperating for a Congressional committee than a witness who has a sound reason for refusing to answer its questions. And no reason could be more sound than a lifetime appointment to the Supreme Court of the United States.

The closest the committee came to evoking forthright replies from Kagan were when questions were posed regarding her treatment of army recruiters when she was a Harvard dean, and having written back in 1995 that Supreme Court nominees should be more forthcoming in answering confirmation hearing questions.

Kagan was well prepared for both. Knowing full well that her answers would not placate conservatives on the committee, she claimed that she did comply with the wishes of the army recruiters and that, by the way, she has nothing but the highest esteem, admiration and respect for those wearing the uniform of our military services. Furthermore, she said she overstated her case about court nominees being more forthcoming and now feels "that was wrong" and "in particular, that it wouldn't be appropriate for me to talk about what I think about past cases. . .because those cases themselves might again come before the court."

She did not back down from discussing the controversial Citizens United v. Federal Election Commission decision by the Supreme Court earlier this year. In this case, she, as solicitor general, argued in defense of campaign finance rules, but the Court struck down legal limits on corporate spending to influence elections as violations of their First Amendment right. The case has been cited as the textbook example of conservative activism on the nation's highest court. Kagan refrained from so characterizing the decision, but did go so far as to say she felt her preparations on behalf of the Federal Election Commission constituted "extremely strong arguments."

Kagan was so cool during the hearing that she might have been injected with some of Obama's cucumber juice, or whatever it is he uses to maintain his consummate unflappability. Her only display of emotion occurred when Senators Sessions, Jon Kyl, R-Arizona, and John Cornyn, R-Texas, attempted to twist her devotion to the late Justice Thurgood Marshall, for whom she clerked, into prima facie evidence that she is somehow an unrepentant,incurable, congenital liberal activist.

In a Washington Post oped article that appeared Tuesday, Stephanie J. Jones, a former executive director of the National Urban League Policy Institute, heroically addressed the aforementioned conservative triumvirate: "Far from being the out-of-mainstream caricature you seek to create, Thurgood Marshall deserves your unyielding gratitude and respect. Among other things, he saved this nation from a second civil war." Jones concluded: "He taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism, it's patriotism."

Kagan's most forthright response during the entire adversarial joust was to Sen. Kyle's insistence that Thurgood Marshall was a liberal activist. "I love Justice Marshall," she rejoined. "He did an enormous amount for me. But if you confirm me to this position, you'll get Justice Kagan, you won't get Justice Marshall. And that's an important thing."

As assuredly as the New York accent of this smart, tough, razor-sharp woman from the Bronx hiked the blood pressure of every racist anachronism watching or listening to the proceedings, it would be nice to think that many more Americans were charmed by the pixie sense of humor she blended with her cerebral acuity.

Asked by Sen. Specter how she felt about Supreme Court testimony being televised, she said, "It means I'd have to get my hair done more often." Prior to a question concerning the terrorist airliner bombing plot last Christmas, Sen. Lindsay Graham, R-S.C., asked where she was on that day. She replied, "You know, like all Jews, I was probably at a Chinese restaurant." Wit has been defined as the power to give intellectual pleasure and it is most probably the key to both Elena Kagan's popularity and respect among her colleagues.

The letters of endorsement for Kagan, mention of which Judiciary Chairman Patrick Leahy, D-Vermont, interspersed throughout her public testimony, included those of conservative legal icons Ted Olson and Ken Starr. To be sure, there will be Republicans on the committee who will vote against her confirmation and others who will oppose her on the floor of the Senate. She will be denounced as an inveterate obfuscator, that she is at core yet another liberal judicial activist. It comes with the territory.

There are others who indeed hope she will be just that. Liberals mourning the loss of the retiring Justice John Paul Stevens would like nothing more than to have him replaced by someone who shares his progressive convictions. Moreover, there is hope that Elena Kagan's incisive legal mind combined with her charm and wit will make the strongest possible favorable impression on Justice Anthony M. Kennedy, the perennial swing vote on the Roberts court.