For a political junkie like me, a Supreme Court confirmation hearing is riveting theater. It’s a chance to debate the hottest issues of the day as well as perennially thorny ones. It’s an opportunity to learn law and history and to study the ways people reveal themselves. Three days into the latest leg of a grinding, weeks-long process, Elena Kagan has exceeded all expectations.

On the first day, as Republican senators made their opening statements and the Democrats made theirs, Kagan’s mien alternated between studious and grave to smiling and relaxed. Tuesday morning, Senate Judiciary Committee chair Patrick Leahy (D-VT) attempted to put Kagan at ease as he gave her the opportunity to defend herself against the anticipated Republican charges.

Kagan beamed as she eagerly answered his first query, recounting the values learned from her parents. Eventually, Leahy read into the record a strongly supportive op-ed from the Washington Post that was written by one of Kagan’s former students, currently a Marine serving in Afghanistan. Kagan’s face saddened, and she appeared close to tears. Throughout this long and arduous process, she said, she’d cried only once: when she woke up to read that op-ed. That letter, she said, meant more to her than any other. Nominees are wary of revealing anything about themselves not already in the public record, so it’s in moments like this that observers can begin to see the witness as a real person, not just a talking head.

The questioning began in earnest with the first challenger, ranking Republican Jeff Sessions (R-AL). He was one of the toughest, grilling her repeatedly on her decision as dean of the Harvard Law School to deny the military the use of the campus career services office for military recruitment. Kagan handled it well, patiently explaining that the government’s “Don’t Ask Don’t Tell” policy violated the university’s anti-discrimination policy and that she had acted to protect gay and lesbian students who might want to serve. She didn’t ban military recruiting, which was done by the campus veterans’ association. Sessions, who returned to his pet peeve again and again, was openly skeptical, implicitly accusing Kagan of lying. He seemed to be personally offended by Kagan’s ability to outmaneuver the Solomon amendment, which he had crafted with great care to plug all possible loopholes.

By midafternoon, however, Kagan was clearly feeling comfortable. Sen. Arlen Specter (D-PA), was doing what every senator at the hearing did: touting one of his favorite causes. After explaining why she also favors televising Supreme Court oral arguments—it would be good for the citizenry as well as for the court—Kagan deadpanned, “It means I’d have to get my hair done more often, Sen. Specter.” As the audience reacted, she waited for Specter—whom she’d stopped dead in his tracks—and chuckled, smiling broadly.

Specter recovered. “Let me commend you on that last comment,” he said. “You’ve shown an admirable sense of humor.” A little humor, he said, “would do the Supreme Court a lot of good.” A rare case of senatorial understatement, for sure—but if Kagan can get her fellow justices to break into even an occasional grin, we might see a few more unified (as opposed to 5-4, split-down-the-middle) decisions.

With Sen. Lindsey Graham (R-SC), Kagan really hit her stride. He began by asking if the hearings so far had been what she’d anticipated. Kagan laughed. Not exactly what she’d pictured, she replied. Alluding to her much-cited remarks (written in 1995) critical of confirmation hearings and nominees who disclosed too little of themselves, Graham playfully asked, “Are we improving or going backwards?” As the audience laughed, he continued, “And are you doing your part?”

Clearly enjoying herself, Kagan laughed and parried, “I think that you’ve been exercising your constitutional responsibilities extremely well.”

Graham continued the banter. “So it’s all those other guys that suck, not us,” he said, with a naughty-boy grin.

He followed with his first question, but Kagan didn’t answer. Instead, gesturing with both arms, she said, “It feels a lot different from here than it did from out there.” She had the confidence to reveal what everyone had to know: how stressful the entire process has been, especially this culmination of being challenged personally and professionally before a national audience in what are probably the most important three days of her life. Brainy, undeniably qualified, yet human, Kagan was wary of making a fatal misstep with a hasty answer. But Graham exuded bonhomie, and Kagan responded in kind. The gravity fell away from her face as they engaged in serious play. Graham had set the stage for a collegial colloquy rather than the contentious encounters of some of his fiercely conservative comrades. “I hope you somewhat enjoy [the hearing], and I think you will,” Graham had said in his opening statement.

Graham succeeded in getting Kagan to reveal her political persuasion. “I’ve been a Democrat all my life,” she said. Progressive? (A dirty word for many of the conservatives). Of course. Graham stated the obvious, that a progressive president will nominate someone who shares his views.

“That’s fine,” said Graham. “It makes the hearings a little more interesting.” Declaring the obvious cleared the air and gave each of them the freedom to disagree.
Towards the end of his allotted time at the microphone, Graham said, “Christmas Day Bomber. Where were you at on Christmas Day?”

Kagan: “That is an undecided legal issue, which—the—well, I suppose I should ask exactly what you mean by that. I’m assuming that the question you mean is whether a person who is apprehended in the United States is…”

Graham interrupted. “Nah, I just asked you where you were at on Christmas.”

Kagan’s laughter rang out. “Like all Jews, I was probably in a Chinese restaurant.”

“Great answer!” Graham nodded appreciatively, as everyone joined in on the joke.

These lighter moments are not merely enjoyable, especially for political junkies glued to the tube. They also indicate Kagan’s increasing confidence. She had thrown back whatever was tossed at her, eloquently and efficiently. Her ability and willingness to engage the senators in repartee shows that whatever anxiety may have accompanied her into the hearing room dissolved with the realization that she’s on a roll, and that her wit is yet another arrow in her quiver.

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