Supreme Court Nominations

Time Out at the Kagan Hearings: On Quips, Ball Clubs and Horror Movies


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Sen. Graham questions Kagan. Screen shot
from PBS NewsHour live webstream.

With the Senate Judiciary Committee pausing the Elena Kagan confirmation hearing until this afternoon because of memorial activities at the Capitol for the late Sen. Robert C. Byrd, there’s time to recall some of the lighter—or at least less-intense—moments.

The hearing resumes at 4 p.m. ET, when the committee will hear from Kim Askew and William J. Kayatta Jr. of the American Bar Association’s Standing Committee on the Federal Judiciary, as well as other witnesses selected by the Democratic and Republican sides of the Judiciary Committee.

In the meantime, here are some of the items revealed by the first three days of the hearing:

• Kagan has a good sense of humor and a keen sense of comic timing. In case you missed it during live coverage, or when it was replayed countless times on late night news and talk shows, or the next day’s edition of The View, there was her famous exchange with Sen. Lindsey Graham, R-S.C., who in venturing into the topic of domestic terrorism and the would-be airline bomber captured last Dec. 25, asked Kagan where she was on Christmas Day.

“Well, like all Jews, I was probably at a Chinese restaurant,” Kagan replied without skipping a beat, as the hearing room in the Senate Hart Office Building erupted in laughter and applause. The line was more improvisational than some of her other laugh lines, which seemed a bit rehearsed.

Sen. Charles E. Schumer, D-N.Y., referred to a study (published in 2005 in the law journal the Green Bag by Boston University professor Jay Wexler) that examined transcripts of oral arguments and determined that Justice Antonin Scalia got the most laughs.

“If you get there, and I believe you will, you’re going to give him a run for his money,” Schumer told Kagan on Tuesday.

(One side note: Linda Greenhouse, the former longtime Supreme Court correspondent of the New York Times, once threw some cold water on that study by noting that much of the laughter during oral arguments, including those in response to Scalia, is of the nervous variety.)

• After some 17 hours of questioning and some 500 questions from the Judiciary Committee (by the count of Chairman Patrick Leahy, D-Vt.), we appear to be no closer to knowing what TV show influenced Elena Kagan to become interested in the law.

Last year, Sen. Al Franken, D-Minn., elicited from then-nominee Sonia Sotomayor that she was inspired to become a prosecutor by watching Perry Mason. This year, Franken, a former cast member of Saturday Night Live, struck a more serious tone in his questioning, railing against forced arbitration clauses and the pending Comcast-NBC merger.

• Nor do we know where Kagan falls in apparently significant divide in pop culture. Sen. Amy Klobuchar, D-Minn., noted Wednesday that “her household” had been up late the previous night to attend the midnight release of Twilight Saga: Eclipse, the third installment of the highly popular movie series.

“I keep wanting to ask you about the famous [battle of the] Edward vs. Jacob [camps] or the vampire vs. the werewolf,” Klobuchar asked Kagan on Wednesday.

“I wish you wouldn’t,” Kagan said with a smile.

“I know you can’t comment on future cases,” the senator said.

• Sen. Klobuchar, a Minnesota Twins fan, noted Kagan’s affinity for the New York Mets baseball team as she asked the nominee about the now-infamous comparison by Chief Justice John G. Roberts Jr. of judges to baseball umpires.

If confirmed, she would succeed Justice John Paul Stevens, who retired Tuesday after more than 34 years on the court, and who has been a lifelong Chicago Cubs fan who was in attendance when Babe Ruth hit his famous “called shot” home run at Wrigley Field in 1932, when Ruth’s New York Yankees defeated the Cubs.

She would join Justice Sotomayor, a Yankees fan who is credited with ending the 1995 Major League Baseball labor stoppage when she was a federal district judge. She would also join Justice Samuel A. Alito Jr., a Philadelphia Phillies fan who hangs a replica of the team’s 2008 World Series championship banner in his chambers at the Supreme Court.

• For the first time in recent memory, a Supreme Court confirmation hearing was not interrupted by protesters. Last year, Sotomayor’s hearing was disrupted several times by individuals in the few rows of seats set aside for tourists standing up and shouting, usually about abortion. Five people were arrested for such outbursts last year, but so far there have been no arrests this year. (And it seems unlikely such protesters are waiting to interrupt, say, a panel of law professors.)

Security remains tight around the Capitol, with extra steps taken for the large, TV-friendly hearing room in the Hart Building. No food or drink is permitted to be brought in by spectators or reporters, although the rules interpretation was sometimes inconsistent over bottled water. One young reporter somehow managed to get a large, Starbucks-style cup of a caffeinated beverage past two checkpoints to his place at the press tables, to the envy of other reporters. But the beverage was quickly spotted by a U.S. Capitol Police commander, who politely whispered to the reporter that the cup had to be removed from the room.

Also see earlier Kagan news from ABAJournal.com:

Kagan Finishes Hearings with Praise from Both Parties, and ‘Concern’ From Republicans

GOP Takes 2nd Round: ‘Don’t Ask, Don’t Tell,’ Military Recruiting (Podcast)

Sessions to Kagan: Tell Us About Appealing ‘Don’t Ask, Don’t Tell’ Cases

Today’s Metaphors: Kagan Advises Democrats About Being an Actor and an Umpire

GOP Expects to Press Kagan Further as Panel Weighs Schedule Over Byrd’s Funeral

Kagan Coverage Roundup: Day 3

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