Commentary: Political rhetoric gets stage at Kagan hearing

Los Angeles TimesJuly 6, 2010 

For those of you who didn't have 19 hours this week to watch the members of the Senate Judiciary Committee question Supreme Court nominee Elena Kagan, here's what happened:

Kagan, as expected, came out fine. She looked a little uncomfortable explaining why, after denouncing confirmation hearings as "a vapid and hollow charade," she now wrapped herself in a thick cloak of vapidity when her own future was on the line; but that, as everyone in the hearing room knew, is the price of admission to the Supreme Court.

Besides, the hearings were not a hollow charade. They gave senators a chance to stage a bank-shot debate over legal and political philosophy that was, at times, downright energizing. And they held up a mirror to the state of our major political parties in this election year: the Republicans, radical, cohesive and fierce; the Democrats, scattered, diverse and only occasionally fierce.

"In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington's disregard for limits on its power," thundered Sen. Jeff Sessions, R-Ala., whose 1986 nomination as a federal judge was rejected by the same committee. The Obama administration's approach to government, he said, "sounds a lot like the progressive philosophy which became fashionable among elite intellectuals a century ago, and is now seeing a revival. … I believe that's a dangerous philosophy."

Sessions didn't mention that one of the great exponents of progressive government a century ago was a Republican president, Theodore Roosevelt. The senator was "narrowcasting," sending a signal of approbation to small-government conservatives and "tea party" activists who want to erase TR's brand of federal activism from the party's acceptable doctrines.

Other Republicans took up the theme.

"Millions of Americans believe that the federal government is simply out of control," said Sen. John Cornyn, R-Texas. The Supreme Court, he charged, has mostly given up trying to limit congressional power, even under its current conservative majority. This year's health-care law, Cornyn charged, was "an unprecedented reach" of federal power into individuals' lives — and a signal that activists should seek constitutional amendments to restrict Congress' powers.

And Sen. Jon Kyl, R-Ariz., complained that President Obama had asked judges to show "empathy" for the underdog. Kyl denounced the idea "that judges should have a keen understanding … that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." (Kagan, who ducked most questions, agreed that she should squelch her empathetic side and stick to the meaning of the law.)

On the Democratic side, some senators heard the GOP attacks on the progressive tradition of the 20th century and responded: Bring it on.

"The rightward shift of the court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens," said Sen. Charles E. Schumer, D-N.Y. "Judicial activism now has a new guise: judicial activism to pull the country to the right." He said the current debate reminded him, too, of the Progressive era — when, he noted, a conservative court struck down a New York law that established a 60-hour workweek.

Sen. Sheldon Whitehouse, D-R.I., also sounded the Progressives' robber baron theme: "For all the talk of umpires and balls and strikes, at the Supreme Court the strike zone for corporations gets better every day," he said. (That was a dig at Chief Justice John G. Roberts Jr., who compared judges to umpires at his own confirmation hearing.)

"If you work for a living, if you're a woman, if you're worried that corporations may buy a louder voice in elections than hardworking everyday Americans, you need to keep an eye" on the Supreme Court, said Sen. Benjamin L. Cardin, D-Md.

But most in the Democratic majority weren't so heated — or so focused. They knew that their immediate goal was to get Kagan to confirmation unscathed. So they concentrated on lobbing her softball questions to help her rebut Republican charges — for example, the assertion that she had, in Sessions' biting words, "demeaned our soldiers" by denying official sponsorship to military recruiters at Harvard Law School. The result was a mismatched debate. Like a World Cup soccer team that's ahead in the first round, Democrats seemed at times to be playing for a draw.

But even if the contest was uneven, it focused on a fundamental question that divided the country even before Theodore Roosevelt: How broad should the federal government's powers be? As in any good debate, both sides are partly right.

The Republicans are right that Obama and the Democratic-run Congress have achieved a significant expansion of federal power, in their actions to stop the economic crisis as well as the healthcare law. The Democrats are right that the Supreme Court under Roberts has turned back into the most conservative branch of government.

As November's congressional election approaches, the Republicans appear to have the more advantageous argument. Not only are voters unhappy with the Democrats' failure to end the recession, but they are increasingly worried about the size and scope of the federal government.

But if the GOP's conservative leaders continue to denounce Theodore Roosevelt, reject the Progressive-era idea that big business needs regulating, and deride the sentiment that "powerful interests must not be allowed to drown out the voices of ordinary citizens," they may yet create a level playing field, despite themselves.

ABOUT THE WRITER

Doyle McManus is a columnist for The Los Angeles Times. Readers may send him e-mail at doyle.mcmanus@latimes.com.

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