The third day of Elena Kagan's confirmation hearings may have demonstrated that there are limits to her charm offensive, as Sen. Arlen Specter (D-Penn.) went to notable lengths to chastise the Supreme Court nominee for, as he put it, avoiding "substantive discussion."
The Pennsylvania Democrat, in what seems likely to be the last Supreme Court confirmation hearing of his Senate career, reached a point of clear frustration on Wednesday with Kagan's unwillingness to engage in detailed legal conversation.
"Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with a standard that you articulated at the University of Chicago Law School about substantive discussions," Specter said. "And they say we haven't had them here, and I'm inclined to agree with them. The question is where we go from here. You have followed the pattern, which has been in vogue since [Robert] Bork. And you quoted me in your law review article that someday the Senate would stand up on its hind legs. it would be my hope that we could find some place between voting no and having some sort of substantive answers. But I don't know that it would be useful to pursue these questions any further. But I think we are searching for a way how senators can succeed in getting substantive answers, as you advocated in the Chicago Law Review short of voting no."
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Specter, who voted against the confirmation of Kagan to her current post of Solicitor General in part because she was not forthcoming in those hearings either, was not the only senator on the Judiciary Committee to complain that she was ducking questions. But he certainly complained louder than others.
Kagan, as he noted, had written at some length about the need to add meaningful exchanges to usually vapid Supreme Court confirmation hearings. Now that she is the one being grilled, her position has changed either out of expedience or because, as she claims, there are risks to having a potential justice weigh in on cases she may hear on the court.
Specter, as he himself noted, is partially to blame for this phenomenon. His vote against Bork helped derail that nomination. And ever since then Supreme Court nominees have studiously avoided offering unvarnished viewpoints during the hearings -- and they have yet to be punished for it.