Monday, June 28, 2010

A Broader Theme in Kagan Hearings (Senate Dems Finding Their Spine?)

Normally court nomination hearings bore me.  I remember -- vaguely -- talk of pubic hair and Coca-cola on CNN during the Thomas confirmation circus and even at an age that should've been able to snicker along with the juvenile discussion, I remember thinking: Really?  What I've read of the Bork proceedings and other older confirmation battles reads like it would've been high drama as well, but it's that same high-drama that turns me off.  These proceedings are as much about grandstanding opposition/minority Senators (or in Orrin Hatch's case... Don't Tea-Bag Me Bro speeches) to sharpen their vocabularies while pretending to care about a lifetime appointment to the nation's highest court more than their do their own careers.

The Kagan hearings today took a different turn that's worth taking note of, in the off chance it keeps up. 

Something Democrats have normally shied from, while Republicans fully embrace (sometimes a little too much) is the use of immediate matters -- like, say, a court nomination -- to reclaim the framing on larger, more broad concepts of governance and, in this case, judicial decision making with a lil' old-fashioned I've-got-a-microphone-and-I'm-going-to-use-it speech making.

Some of the highlights:

Al Franken on coporate personhood.

Franken said the court under Chief Justice John Roberts has repeatedly practiced judicial activism, always in favor of corporate interests.  “Your rights are harder to defend today than they were five years ago,” he said. Whitehouse ripped into the court over its recent decisions in a number of cases, including Citizens United v. FEC. “Sadly, the Supreme Court seems to be buying what the corporations are selling,” he said.
Durbin on the role of the court matters of civil rights:
The Democrats' themes revolve around Kagan's broad experience, in academia and particularly as Solicitor General. They say that her service in the White House is a strength. In a particularly striking passage, Senator Durbin implicitly criticized the Senators critical of the nominee because of her association with Justice Marshall. Describing Marshall's career as a civil rights litigator, Solicitor General, and Supreme Court Justice, Durbin said that he very much hoped that Kagan would continue Justice Marshall's work.
The Eyebrows Senator Leahy flipped the "activist judge" meme around (on record even!):
Numerous Democrats complained that under Chief Justice John Roberts the court has strayed far beyond what Congress intended when it wrote laws regarding campaign finance, workplace rights and other issues. Conservatives on the court "can be and are very activist judges," Leahy told reporters after gaveling the day's session to a close. 

Pincus on the overall "feel" of the hearings:
After the Sotomayor hearings, many progressive-oriented legal groups were angry that Democrats failed to use the hearing to criticize conservative legal principles and explain to Americans the real-world impact of the Court's decisions. That message came through loud and clear. In fact, half of more of the Democrats' time has been devoted to broader issues. Just about every Democrat has spoken about one or more decisions and explained their impact on ordinary Americans. And many Democrats have argued strenuously that judges should consider the impact of their decisions, a sharp contrast to the Republican view of judicial decision making.
Welcome back (Baby Steps!  Baby Steps!) to the fight, Senate Democrats.  

It's not a game changer (Bowers: 5% of the country is watching and Kagan's confirmation ratifies the "blank slate" nominee strategy), but it's at least an encouraging sign after six months of weak-kneed performance from the "majority."

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