NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....

But:

On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

"When in public, do you constantly feel overwhelmed with inexplicable emotions for which you can’t determine the reason?"

Question 1 on a list of 7 questions to test whether you are an "empath," which "is not simply another name for a Clairsentient, though many Clairsentients are indeed Empaths."

If you *are* an Empath, you will know this is you, you will not be saying “Hmm.. maybe… hmm…” If you feel (without hesitation!) these apply to you as I’ve just described, then also know there are ways of coping, and I’ll get into them in future articles. With a little self-awareness you can turn your curse into gift, especially when it comes to being able to ease the emotional and physical pain of others. For now, take consolation in the knowledge that you are not crazy!

For now... but then later, like tomorrow, go to the doctor.

Bonus political joke: These are the 7 questions President Obama uses to interview prospective Supreme Court justices." (Don't get my joke? Read this.)

"But 45% of voters believe the justices nominated by President Obama are too liberal, while 40% say their ideologies are about right."

Rasmussen polls.

Thirty-one percent (31%) of voters nationwide regard the overall Supreme Court as being too politically liberal, while 27% see it as too conservative. Another 32% say the court’s ideology is about right....

Close to Goldilocks-pleasing perfection, right?

John Edwards wanted Obama to nominate him to the Supreme Court.

Said Leo Hindrey, Edwards’ economic policy adviser, testifying that after Obama won the Iowa caucuses, Edwards ready to give up, wanted Hindery to "to reach out to the Obama campaign and make clear his availability on the ticket" and "We talked about a more elaborate goal of Mr. Edwards, which was to be a Supreme Court justice."

When it comes to the Obamacare case, you just can't lose.

Let me state the obvious and not belabor it: Whoever loses will easily and powerfully leverage that loss in the political arena.

If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:

1. I brought you a wonderful solution to a terrible problem. (What he won't say: It would have been a disaster, and fortunately, you will now not need to experience it and see that it was not wonderful, but terrible.)

2. My opponent has been arguing for months and months that you need to elect him to get Obamacare repealed. The Supreme Court already did that work, so that major issue is gone. Move on!

3. There are 5 activist conservatives on the Supreme Court, and if you elect a Republican, by the end of his term, there might be 7. The Court will skew far right, destabilizing the law as we know it. There is a great danger here that you must guard against by keeping me in the position to nominate the next Supreme Court Justices and thereby to rebalance the Court.

If Obama wins, the GOP candidate — presumably Mitt Romney — will be able to say:

1. Obamacare is a terrible disaster looming and bearing down on us. You may have thought the Supreme Court would save us from this dire consequence, but it did not. Alarm! Alarm!

2. The Supreme Court left this matter to the political processes, and it is therefore imperative that the political process work — by electing me — to make a repeal possible.

3. There are 5 activist liberals on the Supreme Court, including the 2 liberal Justices chosen by Obama to rubberstamp his liberal agenda. If you reelect Obama, by the end of his second term, there might be 7. The Court will skew far left, destabilizing the law as we know it. Do you want Kagan II and Sotomayor II joining the Court? You must elect me to restore balance.

ADDED: I think that a loss for Obama would be so politically advantageous for him that he might prefer it. Here's where I play with the idea that he's secretly trying to lose, and that's why the SG's argument yesterday was so bad.

"The first proposition is that the health care law is constitutional."

"The second is that the court could strike it down anyway.... The law is a completely valid exercise of Congress' Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won't put us back in those days as if by magic. Nor does it amount to much of an argument. So that brings us to the really interesting question: Will the Court's five conservatives strike it down regardless?"

Dahlia Lithwick asserts and ponders, and James Taranto rankles.

Only 28% of likely voters rate the Supreme Court "excellent" or "good."

This is the lowest Rasmussen has recorded (since it began tracking this question in 2006.)

Voters from all party affiliations give the Supreme Court similar ratings, but Democrats and unaffiliated voters give slightly higher negatives than Republicans do.

Overall, 33% believe that the Supreme Court is too politically liberal, while 28% say it is too conservative. Nearly as many (25%) say the ideological balance is about right. Another 14% are undecided. Most GOP voters (56%) think the court is too liberal. Most Democrats (54%) say it's too conservative. Unaffiliateds are more narrowly divided.

Ha ha. I find that breakdown funny. It makes me say the Supreme Court is actually doing just fine. Everybody wants it to skew more toward their politics? They don't deserve what they want.

A plurality of all voters (43%) believes the two justices nominated by President Obama are too liberal, showing little change over the past few months. Only seven percent (7%) regard Justices Sonia Sotomayor and Elena Kegan as too conservative, while 36% say their ideologies are about right. Fourteen percent (14%) are undecided.

Fifty-one percent (51%) of politically moderate voters and 65% of liberal voters believe the ideologies of both justices are about right, while most conservatives (75%) believe they are too liberal.

See what I mean?

Now, given that very moderate opinion about the Court generally, it's interesting to see that 69% of voters say that government lacks the constitutional power to require individuals to buy health insurance.

Here's where it's really going to matter that Samuel Alito has replaced Sandra Day O'Connor.

The Supreme Court just granted cert. in an affirmative action case:

The U.S. Supreme Court today agreed to consider whether the University of Texas at Austin has the right to consider race and ethnicity in admissions decisions. Those bringing the case hope the Supreme Court will restrict or even eliminate the right of colleges to consider race in admissions – a prerogative last affirmed by the Supreme Court in 2003 in a case involving the University of Michigan’s law school.

O'Connor was the 5th vote — joining 4 liberal Justices — to accept the use of race as a factor in admissions.

"The best tool is a national identity card, including some biometric evidence, such as a fingerprints."

Writes NYT editor Bill Keller, praising Newt Gingrich for showing "a combination of brains, heart and guts that puts the rest of his party to shame."

Gingrich braves the wrath of libertarians and privacy campaigners to endorse it. In today’s living-online, GPS-tracked world, I think a national identity card would find wide acceptance.

Wait! Since when do liberal columnists love tough ID card policies? I don't know about Keller specifically, but I thought it was an article of faith that requiring a photo ID for voting is about disenfranchising minorities. Suddenly, a card with fingerprints is supposed to be a smart, brave, and compassionate idea?

Keller is talking about immigration policy, but I have to go over to Newt's website to puzzle it out:

There has to be a legal guest worker program....

We can build on the universal system of biometric, tamper-proof visa documents that all visitors must have, and invite a private-sector firm with a proven track record to monitor the guest worker program.

For guest workers, the new tamper-proof, biometric cards will replace the e-verify system, which has some promising elements, but is too error-prone. Employers will be able to swipe prospective employees biometric cards, and immediately be able to confirm that these workers are in the country legally.

Oh, I see. Only the guest workers will need to have these cards in order to work. Not everyone else. Keller doesn't mention that, for some reason. Newt seems to be simply opening a path for some noncitizens to work here legally and to prove that's what they are doing. Obviously, others would continue to work here without the documentation, and then there's the problem of all the Hispanic people who really are citizens who might be hassled over their lack of cards. Why isn't Keller concerned about that? Remember all the fuss about ID-checking back in 2010 when Arizona adopted a new immigration policy?

UPDATE: Wow! Less than an hour after I posted this, the Supreme Court announced it was taking a case about the Arizona immigration law mentioned above! (I'll put up a new post about that.)

"So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the [Obamacare] case..."

"... while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case."

Eric Segall in Slate.

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

Susan Collins, Olympia Snowe, Lindsey Graham, Richard Lugar, and Judd Gregg.

Republicans who voted for Elena Kagan, who was confirmed by the Senate today, by a vote of 63-37.

The Democrat who voted no was Ben Nelson.

A bingo card for the upcoming Kagan debate.

I'm told this is making the rounds in Washington, D.C.



(Enlarge for easy reading.)

ADDED: I'm told this bingo card was distributed by Senator Cornyn's office for the Roberts confirmation:

"The talk in Washington is what the impending elevation of the former Harvard Law School dean and solicitor general will mean for the capstone of the judiciary."

Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?

To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.

But, as I told my dinner companion...

Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!

... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.

Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.

I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s. 

Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted —  refudiated! — by the fact that you are still here writing this column.

They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.

And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.

The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.

They saw the candidates' lives whole...  Broder's elevated diction goes wild.  The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....

He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.

They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.

Look out! The floodgates have opened! Broder's going back to 1960!

It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.

Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?

I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.

That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his...  eminent dome... his venerable cranium... his... nugatory noggin.

Clarence Thomas is not here to entertain you, and Elena Kagan isn't very popular.

"I am not there to entertain anybody," says Clarence Thomas, disparaging Supreme Court oral argument, in which he famously refrains from participating:

[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.

When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”

“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”

Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:

Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....

[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....

[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....

Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.

So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees,  were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?

Why isn't Kagan more popular?
	She seems to be more about social than legal skill and people think that's wrong.
	She didn't say or do anything in the confirmation hearings that made any kind of impression.
	She's supported by Democrats, and people are afraid of Democrats now.
	There's prejudice against her based on her sex and her religious background.
	There's a lot of free-floating unhappiness these days making people give negative answers to polls.
pollcode.com free polls

"[T]he Roberts court demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."

The NYT gives its opinion of the Supreme Court's just-concluded Term:

[T]he tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns....

Much of this is the familiar hand-wringing over Citizens United. The editors admit that a lot of what happened isn't so bad, but it must be bad. It's the Roberts Court. So:

Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups. 

Notice the big flip that's taken place in the last year or so. Liberals worry about constitutional rights getting in the way of legislation, and conservatives have cozied up to the notion of unwritten rights. For that to happen, everyone has to stop focusing on the right of privacy. Isn't it odd?

If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.

There's no other reference in the editorial to "judicial modesty" or Elena Kagan so I'm not sure what Kagan said that's being interpreted as a pledge by the new Justice to go in there and school the oldsters about what something really means. But everyone who has any sophistication about law knows that the Constitution trumps legislation and the question is the scope of constitutional rights. The nominees aren't asked to say — nor would they say —  that they will interpret rights narrowly so that more legislation will survive or, conversely, that they will interpret rights expansively and nullify democratic decisionmaking. They're all asked to say and they all promise to say exactly what the rights really are and to enforce those rights despite pressure to allow the democratic choice to prevail and despite their own preferences about what ought to be legislated.

But the New York Times must, on schedule, wind up its readers about the conservatives on the Supreme Court. It's all such tedious sophistry.

Am I sorry not to be live-blogging the Kagan hearings today?

I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:

Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.

If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.

Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses.  We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)

I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.

Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....



And we know where the ripe black raspberries are!

The Kagan hearings.

Here's the live stream. Yesterday was tedious beyond words, and, accordingly, I wrote nothing. Today, there's some potential for a spark or 2, and I'll do some live-blogging here.

8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.

8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.

8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.

8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific policy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination policy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination policy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.

9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!

9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).

9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.

9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.

9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."

10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.

11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.

11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.

11:56:  Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.

12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.

Watching the Elena Kagan confirmation hearing.

Here's the live stream, which begins at 12:30 ET. You'll also be able to watch non-live. After all the new Supreme Court cases this morning, I'm not going to park myself in front of the screen and watch the Senators read their statements, which should take all afternoon. I'll catch up later and do some commentary, but I need to go live in the physical world for a little while. Please comment on the hearings in this post.