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.
In her testimony, Elena Kagan presented her treatment of the recruiters as no big deal. Not if it's going to stand between her and confirmation it isn't. Inflexible she isn't.
However the lady may change her opinions through the years, one thing will surely remain the same: She'll always emerge with a higher position. The Russians have a word for such: apparatchik, meaning a member of the apparatus. We call it the Establishment. Whatever the changing political tides, its members have a way of rising to the top.
Elena Kagan can turn on an FDR dime if that's what it takes to appease her critics. Another example: She was never a big fan of the Second Amendment before the recent Supreme Court decision upholding it. But now that the court has spoken, she recognizes a citizen's right to bear arms as an individual, not just as part of a collective force like the state militia. Because now it's precedent, "settled law," and just fine with her.
Oh, Stare Decisis! What smooth pivots can be executed in thy name! The most impressive thing about General Kagan's law is how its twists and turns always fit so neatly with her ambitions.
She may be a liberal, she may be a lifelong Democrat, she may share all the ideological habits you'd expect in a dean of Harvard Law in these politically correct times, but when push comes to shove, or rather nomination comes to confirmation, her bedrock principle comes to the fore. And it is a very American one: upward mobility.
A dear lady we once knew who had immigrated to this country between the wars used to say on encountering some smooth operator, "He'll do well in America." It's not that she wasn't impressed by such charmers, she just understood their basic principle, or lack of same. I have an idea she'd know Elena Kagan's type at a glance.
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