Elena Kagan completed her testimony before the Senate Judiciary Committee, and there seems little doubt that she is on her way to being confirmed as a Supreme Court Justice.
No one can seriously dispute her qualifications: she discussed a wide variety of legal issues (answering more than 500 questions) with authority, confidence and good humor. Senator Sessions described her as a person of “skill and intelligence.”
And Republicans haven’t yet been able to find an issue with “traction”—something with enough resonance with the public at large to convince moderate Democrats and moderate Republicans to consider opposing the nominee.
On the military issue, the strong support that Kagan has received from Harvard graduates now serving in war zones provides a strong rebuttal to any argument that Kagan is “anti-military.” On the constitutional issues receiving the most focus—abortion, gun owners’ rights, the scope of Congress’s authority under the Commerce Clause—Kagan acknowledged the Court’s existing precedents. And on interpreting the Constitution, she set forth an approach that acknowledges the relevance of “original intent” but leaves room for other considerations such as precedent and the principles embodied in the Court’s precedent. (It will be hard for Republicans to attack this approach in view of Senator Sessions’ statements that “originalism has its limitations” and that “each theory has its limitations.”)
And both Democratic and Republican Senators said that Kagan was more forthcoming than previous nominees.
The immediate impact of this hearing will be Kagan’s confirmation as a Justice.
But in the medium and longer term, it may be remembered as the first confirmation hearing in which Democrats aggressively promoted an alternative view of the Court’s role, and of constitutional interpretation—as well as of what constitutes “judicial activism.” For many years, that charge was the exclusive province of Republicans arguing that liberal Justices were “legislating from the bench.” Democrats turned that charge against conservatives in the last two days, claiming that they were ignoring precedent and using the courts to impose their own policy views.
This argument is only just getting started.