Are Kagan Hearings a Waste of Time?


Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue–and tried to teach viewers a lesson–about the need to tamp down the bitter liberal—conservative battles that have poisoned judicial confirmations.

Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.

Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.

And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit– she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.

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