Help us, Elena Kagan, you're our only hope.
Many liberals, including Kagan, think that the "Borking" of Robert Bork during his 1987 confirmation hearings for the Supreme Court would deserve a commemorative plate if the Franklin Mint launched a "great moments in legal history" line of dishware.
I don't share that view. And although I have no desire to rehearse all the ways in which Bork was mistreated by Ted Kennedy and the usual liberal interest groups, I do think an often underemphasized outcome of the Bork hearings is worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the left, no nominee since has dared show Borkian forthrightness.
Consider Monday's thunderclap from the judicial Mt. Olympus: The 2nd Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas' separate opinion in favor of the 14th Amendment's "privileges and immunities" clause over the due process clause was the better argument. But that's a debate for another day.
The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen G. Breyer's dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. "I can find nothing in the 2nd Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes," Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick J. Leahy asked her, "Is it safe to say that you accept the Supreme Court's decision as establishing that the 2nd Amendment right is an individual right? Is that correct?"
"Yes, sir," she replied.
Now, both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That's why Leahy asked the questions the way he did and that's why she answered them the way that she did. It's also why he spun her answers into more than they were: "I do not see how any fair observer could regard [Sotomayor's] testimony as hostile to the 2nd Amendment personal right to bear arms, a right she has embraced and recognizes." He deliberately made it sound as though she was open to an expansive reading of the 2nd Amendment when everyone knew she wasn't (as a judge, she was hardly a hero of the NRA).
Now, let me be clear. Sotomayor was nothing like an exception to the rule; she was following it.
Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor's width on the side of truthfulness. The point is not to give the best, most thoughtful or most honest answer, but the answer that makes it the most difficult for senators to vote against you. It's as if we expect nominees to demonstrate, one last time, everything we hate and distrust about lawyers before they don their priestly robes.
In fairness to everyone concerned, nobody is shocked to discover that Sotomayor is in fact precisely the dyed-in-the-wool liberal justice everyone expected her to be. But the fact that everyone is in on the lie is just further evidence of the sham Supreme Court hearings have become. They are a nonviolent and fairly bloodless cousin to totalitarian show trials, where everyone follows a script and politicians pretend to be "gravely concerned" and "shocked" upon "discovering" things they already knew.
And that's why Kagan could be the hero of this tale. She has vociferously argued that the "Bork hearings were great … the best thing that ever happened to constitutional democracy." She has lamented how, ever since, hearings have become nothing more that "a repetition of platitudes." Kagan implored senators to dig deep into the nominee's "constitutional views and commitments."
If I had to bet, Kagan will reject the "Kagan standard" and play the game. And if she does play the game she has long deplored, why should anyone take any of her platitudes seriously?