Did Elena Kagan Basically Call John Roberts An Evil Umpire?

A Supreme Court nominee must adhere to one law above all others: Keep your confirmation hearing as boring as possible.

So boring that on this Tuesday, the second day of Elena Kagan's confirmation hearing, the Senate Judiciary Committee discussed Kagan's opinion of confirmation hearings. In 1995, she wrote an article titled "Confirmation Messes, Old and New" for the University of Chicago Law Review, in which she lamented that substance had been drained from the Senate process.

"The safest and surest route to the prize lay in alternating platitudinous statement and judicious silence," she wrote, as she called for an increased, detailed scrutiny of nominees' substantive beliefs about the law and the issues facing the court. The situation had gotten worse since conservative stalwart Robert Bork was nominated (and rejected) in 1987, when he made the mistake of leaving a long paper trail of beliefs and sharing his views on a wide variety of cases. "Not since Bork," Kagan wrote, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."

Oops. On the second day of hearings yesterday, Kagan, like Justices Thomas, Breyer, Ginsburg, Roberts, Alito, and Sotomayor had done before, deflected questions about her specific views on abortion, gun rights, terrorism and every other possible specific point of doctrine. She instead defended her right to platitudinous statement and judicious silence, now deciding that her 1995 conclusions were mistaken. "I think that -- in particular, that it wouldn't be appropriate for me to talk about what I think about past cases -- you know, to grade cases -- because those cases themselves might again come before the court."

Pennsylvania Senator Arlen Specter, who made his reputation as a moderate Republican by interrogating Bork on his civil rights views and ultimately voting against him, complained that Kagan was "elusive." But there's no catching her: instead, once again, the hearing has reverted to an odd rehearsal where people trot out different euphemisms and code words. When George W. Bush nominated John Roberts as Chief Justice in 2005, the word was famously "umpire." As Roberts put it, a judge had almost a mechanical role, like a baseball umpire, "Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

Of course, this claim was an implicit rejection of the liberal idea that the judiciary should actively step in and protect the rights of those left out of the Democratic process, and reflected a certain ideological disposition. As Jeffrey Toobin reported in the New Yorker last May: "The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."

Roberts has been ideological (as are most judges: they are people after all), but his stated beliefs sounded unobjectionable, and he skated onto the court with only slight bruising from the Senate, its not too hard to attack a liberal for straying from their umpiring duty. The umpire analogy sounds good, and Democrats can confirm many moderate judges on that line, but it has become a millstone, crimping the ability of politicians and judges to speak of the court as an entity that protects rights and remedies injustice -- by taking Roberts at his word, it ceded the entire political debate over the law to a legal code developed by conservatives to oppose business regulation, abortion rights, and other hot-button issues. The accusation that Roberts, not Sonia Sotomayor, is actually the activist judge does not do the trick. Liberal groups, unlike the conservative grassroots or fundraisers (who often have an long-running interest in less regulation), will not get excited over pledges of modesty.

And today, Kagan, as platitudinious and judicious in her words as Roberts, fired back at his umpire metaphor. "The metaphor might suggest to some people that law is a kind of robotic enterprise, that there's a kind of automatic quality to it, that it's easy, that we just sort of stand there," she said, "and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that's not right,"

"Judges do, in many of these cases, have to exercise judgment. They're not easy calls," she continued. "Those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law -- law does require a kind of judgment, a kind of wisdom."

And so it is. The new buzzword for liberals, for next time and now, is even simpler than the umpire metaphor. What America needs, they will probably say, on the campaign trail and on cable television, is that judges need a "kind of wisdom" to "exercise judgment." Judges need to exercise judgment, sure. But it would be nice if the hearings had substance, and move along as something more than a distracting and depressing sideshow to the the flurry of Supreme Court decisions that once again display the size of John Roberts' strike zone.