June 2010

We've said more than a few times over the past few weeks that Supreme Court confirmation hearings are a unique opportunity for the nation to engage in a conversation about the Supreme Court and the impact that its decisions can have on our lives. We didn't want to lose sight of the fact, however, that the hearings serve the very useful function of introducing us to the individual nominated to sit on that Court.

In the case of Elena Kagan (pictured with Vice President Biden and President Obama), the chance for the public to get a better sense of her seems particularly important. In polls conducted last week, 47 percent of those polled said they didn't know enough about her to opine whether or not she should be confirmed.

This week, that 47 percent got their first chance. Elena Kagan got to speak. And what we have heard so far is reassuring and, indeed, inspiring: she is an articulate, warm, thoughtful woman who is not afraid to show a sense of humor, who takes the power and promise of the judiciary very seriously, and who demonstrates a dazzling command of the law.

1) Sen. Grassley is interested in law school curriculum reform. He pressed Kagan on why Harvard requires International Law as a 1L class, but not Con Law; after all, isn't Con Law so much more fundamental to our system than International Law? The subtext of course, was that Kagan believes international law is more important than our constitutional law--or worse, should be a part of our constitutional law. But the phrasing bordered on an accusation of lack of patriotism--you have more love/respect for the law of other countries than our own beloved (perfect) Constitution.

Kagan (pictured with Senate Judiciary Committee Chairman Patrick Leahy) gave what I thought was an interesting answer, explaining: 1) We require Legislation/Regulation course that gives 1Ls the background about the structure of the legal and governmental system; 2) Con Law is so complex that students are better able to grasp it as 2Ls and 3Ls; and 3) More students are going to do international litigation or international business transactions in their careers than are going to litigate commerce clause issues. Grassley's response was something to the effect of "Isn't Con Law fundamental to our system and shouldn't something so fundamental be a part of the 1L curriculum?" Maybe next round she can explain that there are only so many hours in the 1L year.

2) "I would need to research that more" is this year's "I can't decide in the abstract" and "I can't opine on an issue that might come before the Court" (although we have heard some of the latter). This highlights that justices are not walking constitutional law experts who can answer every minute question off the cuff; answers to specific questions require thought and research.