High-profile Republicans on the Senate Judiciary Committee are a piece of work.
During the first three days of hearings on Elena Kagan's nomination to the U.S. Supreme Court, some in the opposition party tried to paint her as a military-hating, anti-free speech, danger-to-the-Constitution progressive who's so out of the "mainstream" that she shouldn't be confirmed.
But they haven't done it by eliciting any damaging statements. They've done it primarily by showcasing their own political biases.
Take Sen. Orrin Hatch of Utah, for instance.
Hatch agrees with a January high-court decision that struck down restrictions on when and how corporations can spend independently in federal elections. And he doesn't like claims from his colleagues, President Barack Obama and others that the 5-4 ruling in Citizens United v. Federal Election Commission was at best an unjustified decision that overturned long-standing precedent and at worst a radical move by conservative activists.
So Hatch used a large part of his first round of question time to "educate" Kagan about the case, which she had argued before the high court on behalf of the federal government.
As solicitor general, she was the government's top lawyer before the Supreme Court, so it was her job to defend the statute. Congress had passed the law with substantial fact-finding about the corrupting influence of money on the democratic process.
Between pontifications, Hatch tried to get her to say Congress can't impose these kinds of limits. But Kagan largely reiterated the government's position in the case and said the court's ruling settled the debate.
So much for illumination.
During his first opportunity at questioning, Alabama Sen. Jeff Sessions shone light on two points: He hasn't lost the sharp interrogation skills that must have made him a proficient federal prosecutor back in the day — and he wasn't going to get the better of Kagan on the issue of military recruiting at Harvard Law School when she was dean.
Sessions helped craft the Solomon Amendment, which requires colleges receiving federal funds to give military recruiters the same access to students as other companies on campuses.
A collection of law schools objected to the requirement because of the military's "don't ask, don't tell" policy on gays. Harvard law tried to strike a balance with the school's nondiscrimination policy by having military recruiters sponsored by campus veterans groups rather than work through the Office of Career Services.
Kagan said she believed at the time that Harvard's accommodation complied with the Solomon Amendment. The Supreme Court rejected that view when it upheld the law's constitutionality in 2006.
An increasingly exasperated Sessions called her comments "disconnected from reality."
"I know what happened at Harvard," he yelled at her. "I know you acted without legal authority."
How dare she take out her grievance on "the men and women we send in harm's way."
It was a performance worthy of "Law & Order."
And it said lots about Sessions but little about what kind of justice Kagan would be.
Not that the Democrats were much more helpful.
Minnesota Sen. Al Franken groused about the activism of Citizens United. Others tried to assure themselves she agreed with them on the topics closest to their hearts.
Kagan largely referred to what the Supreme Court has ruled and what the precedents say and what the standard tests are for interpreting the law. She did allude multiple times to the notion that judges are trying to do what the law requires but they might disagree on what that is.
The biggest risk she took — and arguably it wasn't a risk at all — came when Republican Sen. Lindsey Graham of South Carolina asked about Miguel Estrada, a well-known conservative lawyer who wrote a warmly supportive letter endorsing Kagan's nomination.
President George W. Bush nominated Estrada to the U.S. Court of Appeals in D.C. in 2001, but Democrats repeatedly blocked any vote on him, and he withdrew in 2003. Kagan said she would write Graham a letter praising Estrada, a friend since they sat together in all their first-year Harvard Law School classes.
"He's qualified to sit as an appellate judge; he's qualified to sit as a Supreme Court justice," she said.
It was a welcome reality check amid the partisan posturing.
ABOUT THE WRITER
Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at email@example.com.