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Susan Estrich
12 Feb 2016
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The Supreme Charade


Supreme Court confirmation hearings are nothing but a charade. "Balls and strikes" is what John Roberts said he'd call. Sonia Sotomayor, no fool she, said the same. Elena Kagan, ditto, is going to be a neutral arbiter. She isn't a "progressive." She will be fair and open.

Of course. She'd be crazy to say otherwise.

Once upon a time, back when she wasn't sitting at the table, Kagan suggested that prospective justices should try to outline their constitutional views at the confirmation hearings. Senators might learn more about who they were voting for. The watching public might learn something, period.

Not a chance. Now senators pretend to "learn" something by reading memos the would-be justice wrote nearly three decades ago as a law clerk. Would-be justices spend three days forgetting everything they learned about judicial decision-making in law school and since, claiming that values have nothing to do with it; neutrality is the watchword. It's not an educational experience for anyone. It's a game of "gotcha," and the way you don't get gotten is, basically, to say nothing.

Barack Obama won the election. He has the right to appoint someone to the Supreme Court who shares his philosophy, provided that he or she brings to the job the intelligence and experience to perform effectively. No one seriously doubts that Kagan brings such experience and intelligence. No, she wasn't a judge, but she is a serious student of the law and the solicitor general of the United States. I have no idea how the senators who voted to confirm her as solicitor general would now explain a vote not to confirm her as a justice, but since none of this is an exercise in candor or intellectual honesty, they'll just do whatever they want and say whatever seems to work.

Watching the confirmation hearings, unless you're a masochist or a satirist, is a waste of time. You learn nothing except how silly the process has become. Ever since Robert Bork — who was highly qualified but also arrogant and divisive — went down in flames at his hearing, every successive nominee has understood that the game is to say as little as possible, disown prior controversies, eschew any hint of ideology and simply endure.

Five days of misery are certainly worth a lifetime appointment. I tell my students, when they bemoan the misery of the bar exam, that with luck, it's the last test they will ever take; the same is true in spades for Kagan. Miserable and ridiculous though this process may be, it's likely the last time she will ever have to endure it.

But the message it sends is all wrong: If you dream of being a justice, don't ever take a controversial position. Imagine if she had represented an individual accused of terrorism. Imagine if she had actually written law review articles advocating truly progressive positions.

The funny thing about these hearings is how little months of digging for dirt on Kagan have revealed. In fact, she has been extremely careful in what she has said and written, far more careful than most law professors I know. Investigations into her personal life have failed to reveal poor choices and bad moments, which is more — or less — than I can say for most highly qualified 50-year-olds I know.

It's a ridiculous standard to have to meet to serve on the bench. Indeed, so far as taking controversial positions and representing controversial clients, it is one that does not necessarily produce the people of courage and conviction we need on the federal bench. But sadly, it has become the operative test. Most people who run for president, including those who win, could never be confirmed as a justice — too human, too many mistakes in life. How ridiculous.

Republicans will claim that they are not to blame; it was the Democrats who supposedly started it with Bork. Fine. So what? As every mother knows, the issue is not who started it, but who is going to end it. The answer seems to be that no one is, not any time soon.

Obama was lucky to find in Kagan a nominee who is both highly qualified and capable of being confirmed. The two do not always go hand in hand.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



10 Comments | Post Comment
It will have to be a nominee that changes the dynamic by answering questions honestly and without fear of the outcome. Particularly telling was Sen Coburn's question on, "if Congress passes a law that requires everyone to eat three fruits and three vegetables each day, is it constitutional?"

If a nominee to the Supreme Court can't or won't answer this question, I don't think they're qualified.
Comment: #1
Posted by: pb1222
Wed Jun 30, 2010 7:30 AM
The assertion that "Barack Obama won the election. He has the right to appoint someone who shares his philosophy provided he or she brings to the job the intelligence and experience to perform effectively" begs the questions as to what is Obama's philosophy and what was she appointed by Obama to perform effectively. Obama is a now proven narcissistic, infanticide enabling, same sex marriage enabling, anti gun rights enabling, freedom restricting, blame America first, congenital liar, whose philosophy has been shaped by islam, black theology, anti white racists, rabid jew haters, home grown terrorists and other sundry proponents of Marxism and who was elected as a result of misrepresentation and the betrayal of America by the so called main stream media. His whole re distibutionist philosophy and purpose is to destroy American society and to turn America into a socialist state. His background and philosopy make him entirely unfit to be POTUS and accordingly by extension anyone lappointed by him is likely to be tainted by the same philosophy and unfit for any public office of trust. That this is unassailably true is demonstrated by the host of radical leftist czars and cabinet members that he has thus far appointed. It is further demonstrated by his first Supreme Court appointment of a racist, judicial activist "wise latino women" to wit Sotomeyor. This much is certain, just as Obama believes in re distribution of wealth (theft of the property of one person to give to another) so he believes in redistribution of justice, (theft of justice for one based solely upon its wealth or corporate standing or race to give to an undeserving other). Kagan has shown herself to be an anti military, anti capitalist, leftist elite. Make no mistake any vote for Kagan is a vote for liberal judicial activism of the worst kind, restrictions of freedom, futher diminishing of the Constitution and for the destruction of the institution of marriage. These are the tasks she is being appointed to perform and she will do her best to fulfil the tasks. Just as Obama is unfit to be POTUS, Kagan is supremely unfit to be a Justice of the Supreme Court.
Comment: #2
Posted by: joseph wright
Wed Jun 30, 2010 8:30 AM
Susan, this is one of your finer pieces in that you succinctly demonstrate how even the most liberal or conservatively active nominee can get through this charade. Even if demonstrably partisan, all one has to do is express their desire for "neutrality" and avoiding directly addressing their opinions, written or verbal.
But, I am even more cynical. I think the entire process is nothing more than an effort for the opposition to make sound bites that are essentially tests to see what sticks with the public. If the public is disinterested, or in this case if the public has few outlets from which to see/read/hear about it, then there is little choice but to proceed with confirmation. If you can't get sympathy for your own outrage with a larger section of the public, feigned or not, you fail to derail. However, as a consequence, you have nice sound bites that can be used to your advantage whenever you next stir your base. The best part is this entire charade is truly non-partisan in that each side is equally adept and practiced in it!!
Comment: #3
Posted by: John in MA
Wed Jun 30, 2010 9:22 AM
I completely agree with your commentary, Susan, with the exception of one item. Watching the Kagan hearing has been very insightful, educational and interesting, for me, personally. Despite the political charade, I consider myself fortunate to have the opportunity to listen to her insights and observations. She has a brilliant legal mind. I find this to be true of each hearing for each Supreme Court Nominee. I consider it an opportunity and a blessing, not sadism or masochism, to watch these hearings. Perhaps this is so because I am not an attorney. As an aside, the hearings also allow me to witness the true colors of many of the Senators, including their demeanor toward others and their unique abilities (or lack thereof) to be fair and open-minded. Overall, in my opinion, airing the hearing of Ms. Kagan is very worthy to all Americans. As an aside, I always enjoy your viewpoints and commentary, despite our differing political views. Bless You!
Comment: #4
Posted by: Blaine Anderson
Wed Jun 30, 2010 10:06 AM
I agree that stupidity should stop but I also believe that Bork would have been a great justice. The unbelievable, scurrilous attack by Kennedy should have been attacked for the same reason Senator Joe McCarthy was attacked by his fellow senators. The only differerence was that McCarthy was right
Comment: #5
Posted by: Ron Kohl
Wed Jun 30, 2010 12:13 PM
I don't like the analogy that taking a test is like going through a confirmation. Taking a test is tough, but going through a confirmation is just lying. Also, it was interesting that searching for progressive decisions or leanings in now referred to as "digging for dirt".
Comment: #6
Posted by: scott365
Wed Jun 30, 2010 4:03 PM
Comment: #7
Posted by: ROBERT LOW DO
Wed Jun 30, 2010 9:21 PM
Dear Ms. Estrich,

Yes, the Liberal Democrats, and a handfull of Liberal Republicans "BORKED' Judge Bork, and I might add screwed Justice Thomas! What's your response, he was 'BORKED' he was devisive and that's okay because only you Liberals know what's best. Duh, just what do you think should be done to rectify the situation, and as we union stewards say, make whole the person affected?

It appears you Liberals never gave a thought to what would happen after Judge Bork got 'BORKED'. Duh!!!

Why was it was okay for all but a handfull of Democrats to find President Bill Clinton not guilty of impeachment. I mean how exactly did Bill Clinton's sperm find it's way onto Monica's dress, and if one believes [even Hillary and Chelsea believed] he received a BJ from Monica, then he was GUILTY of the stated charges! OH, I forgot it was all a vast right wing conspiracy!

The connection between Supreme Court nominees, and President Clinton is that the Democrats behaved so outrageously, it has soured bi-partianship for the next 50 years, and probably contributed to the hatred felt by Republicans for Democrats!

Nuff Said...Dennis

PS. I'm what is called a Blue-Dog Democrat.
Comment: #8
Posted by: Dennis
Thu Jul 1, 2010 11:06 PM
Kagan will be the next Facist appointed to the Supreme Court.
Comment: #9
Posted by: Early
Fri Jul 2, 2010 6:06 AM
Ms. Estrich. I am a big fan of yours. I like your style because you are one of a very few whom I continue to admire while disagreeing with certain views you write about. I feel Kagan is not a very good choice for the Supreme Court but I also have no respect for any of the current members. When you write:Republicans will claim that they are not to blame; it was the Democrats who supposedly started it with Bork. Fine. So what? As every mother knows, the issue is not who started it, but who is going to end it. I could not disagree more. The whole point of calming an argument is to seek the justice in determining right and wrong. To simply dismiss it is an insult to both sides who have very strong beliefs.
All this aside, I find the Supreme Court to be a corrupt bunch of arrogant snots who have outlived their usefulness to society. These nine fossils are a blemish on our country.
Comment: #10
Posted by: Rich Klinzman
Fri Jul 9, 2010 11:57 AM
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