Paul Greenberg

Who says confirmation hearings are just a charade? Elena Kagan, for one, or at least she used to before she felt obliged to bow and curtsy before her inquisitors on her way to the top -- which for anyone in the American legal profession is a seat on the U.S. Supreme Court.

Elena Kagan once called such hearings "vapid," which they tend to be. But no nominee for the court can afford to be that candid before the U.S. Senate. For the object of the game, at least for the nominee, is to get confirmed -- which means not saying anything that might offend.

Candor is surely expendable if it stands in the way of a promotion of a lifetime, with tenure to match. The trick is to gloss over any earlier statement that might prove embarrassing just now. If a nominee must compromise one or two principles on the way to confirmation, surely that's a small price to pay for so high an office. If you consider principle a small thing.

Look what happened to Robert Bork, who spoke with some candor at his confirmation hearing back in 1987. Or rather what didn't happen: He didn't become the next justice of the U.S. Supreme Court. Instead he was, in a word, borked. That is, he was subjected to vicious and repeated attacks, with the late Ted Kennedy leading the pack.

Judge Bork's big mistake? He answered the questions put to him instead of evading them, thus giving his critics all the ammunition they needed. No nominee to the court has repeated that error since.

General Kagan -- the rank is strictly civil, as in postmaster or attorney general -- would scarcely be the first candidate for the high court to recognize that tact can be the better part of valor. Indeed, it can be a complete substitute for it when the stakes are this high. Better to take refuge in a platitude than risk saying something meaningful. Platitudes may bore but they seldom offend. (More's the pity.)

There have been times during her confirmation hearings when it was hard to remember this is the same Dean Kagan who barred the U.S. military from recruiting like any other potential employer at her law school. At one point during her stellar career at Harvard, she went so far as to defy federal law in the form of the Solomon Amendment, and so put her university's federal grants at risk -- until the Supreme Court stepped in and read the law to her. Unanimously.

Till then, she had insisted on discriminating against the military's recruiters at Harvard in retaliation for its Don't Ask, Don't Tell policy where homosexuals are concerned. It seems she doesn't approve of it. Lots of us don't -- and never did -- but we're not about to disrespect the uniforms that guard us while we sleep.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.