As the Senate moves toward a confirmation vote on Supreme Court nominee Elena Kagan, the only question is how many Republican senators will support her. Will it be more than the nine who voted for Justice Sonia Sotomayor? Fewer? And what will that say about her qualities as a justice? Unfortunately, the answer will probably be: not much.
Ms. Kagan followed closely the script laid out by Chief Justice John Roberts in what is widely considered a masterful performance in his confirmation hearings five years ago, repeating the phrases "settled law" and "judicial restraint" as often as possible. Justices Samuel Alito and Sotomayor tried the same tack, but Ms. Kagan apparently recaptured some of the Roberts charm, getting Utah Sen. Orrin Hatch (who voted against Justice Sotomayor) to call her a "better witness" than President Obama's first nominee to the high court. Even Oklahoma Sen. Tom Coburn, one of the most conservative members of the Senate, admitted that to Ms. Kagan that "you kind of light up a room."
This is a relief. Americans were likely gravely concerned about whether the next person given a lifetime appointment to the Supreme Court could crack jokes about Jews in Chinese restaurants on Christmas.
As for the substance of the hearings, Ms. Kagan demonstrated that she is well versed in Supreme Court precedents and legal theory, as one would hope a former dean of Harvard Law School would be. But those looking for evidence of her judicial philosophy were likely disappointed. Her answers, in following the Roberts model of demurring on giving an opinion on anything that the court has previously decided or might someday decide, were couched more in terms of analysis than evaluation.
The closest she came to suggesting she has a different outlook than Justice Roberts was to modify, if only slightly, his metaphor of a judge as an umpire calling balls and strikes. She said that comparison was essentially apt but noted that the calling of balls and strikes is not an exact science, a fact that should be obvious in the wake of both the Roberts court's penchant for overturning what seemed like settled law and the recent bungling of umpires and referees in the matter of perfect games and World Cup goals.
The red meat moment of the hearings, so to speak, was Ms. Kagan's wordy answer to Senator Coburn's question about whether Congress could require Americans to eat their vegetables. He was getting at the conservative contention that Congress had gone too far in enacting President Obama's health care reform legislation and its mandate that individuals buy health insurance.
But rather than give the answer he wanted, and that most would consider obvious ("Um, no"), Ms. Kagan engaged in a lengthy discussion about the limits of the commerce clause and the degree of deference the courts must have to the political process. A short clip of the exchange has become a hit on YouTube as it has been passed around in conservative circles, but the full exchange between Ms. Kagan and Senator Coburn, which runs about 10 minutes, concludes with Mr. Coburn arguing for an expansive role for the judiciary in determining what is or isn't wise policy and Ms. Kagan for a deferential one in which such matters are left up to Congress. So much for the idea judicial activism is a liberal trait.
In the end, Ms. Kagan made no major gaffes, and Republicans were unable to find any new ammunition against her, making any attempt at a filibuster unlikely. Democrats enjoy a sizeable majority in the Senate, and she will be confirmed. The factors that will affect the size of the majority that supports her will have nothing to do with what she said during her hearings and everything to do with external politics. The National Rifle Association has decided that based on her service in the Clinton White House, Ms. Kagan is hostile to the Second Amendment. Her assertion that recent decisions interpreting the right to bear arms as pertaining to individuals, not just militias, are settled law didn't matter. The advocacy group has indicated that it will use senators' votes for Ms. Kagan against them when it scores their fidelity to the NRA agenda, and that alone will probably be enough to prevent some Republicans from voting for her.
Until the Senate starts rejecting people for being coy, this is what we're going to get — nominees who say little during their confirmation hearings, and politicians and interest groups who reach their conclusions based more on the nominator than the nominee. Both liberals and conservatives had good reason to want substantive confirmation hearings for Ms. Kagan since she has never been a judge and thus has no record for us to consider. Instead, we are merely left to assume that since President Obama nominated her, those who agree with him will be pleased by her performance on the bench, and those who disagree with him won't. As Sen. Lindsey Graham of South Carolina is fond of saying, "Elections have consequences."
So should the Senate vote to confirm Ms. Kagan? Yes. Her strong understanding of the law makes her qualified, and she has given no evidence that she holds views outside the mainstream. We don't know exactly what she will do on the bench, but when do we ever? As we learned from the man Ms. Kagan would replace, the Republican appointee John Paul Stevens who eventually became the most liberal member of the court, when it comes to justices, you never know what you're going to get.