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 to give 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.
Nobody is shocked that Sotomayor has revealed herself to be the liberal everyone knew her to be. But the fact that everyone was 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 should 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, the hearings process has become nothing more that "a repetition of platitudes." Kagan once implored senators to dig deep into the nominee's "constitutional views and commitments."
Alas, it doesn't look like Kagan will be following the Kagan standard. On Tuesday morning she distanced herself as best she could from those views. And when asked by Sen. Jeff Sessions whether she is a "legal progressive" -- something pretty much all objective observers and her own friends and former colleagues know her to be -- the brilliant and scholarly Kagan claimed to have no idea what the term even means.
After his rejection by the Senate, Bork wrote a masterful book, "The Tempting of America: The Political Seduction of the Law." The title of the book on Kagan might well be titled "The Tempting of Kagan: The Political Seduction of the Process."
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