The Reality Behind My Confirmation Fantasy

By Mike Dorf

My latest FindLaw column imagines how the confirmation hearing for Elena Kagan might go.  Here I'll just note all of the places in which I used more or less actual past statements from the nominee and the Senators for my text.

-- The description of the "pincer movement" comes from then-Professor Kagan's article in the 1995 U Chicago L Rev.

-- Sen. Sessions has been vociferously arguing that Kagan's refusal (until the ruling in FAIR v. Rumsfeld) to exempt the military from Harvard's anti-discrimination policy amounts to hostility to the military.

-- Sen. Specter's switch to the Democratic Party occurred shortly after his vote against confirming Kagan to be SG.  Citing Scottish law, he voted that the charges against Pres. Clinton were "not proved."

-- As a Senator, Joe Biden called the confirmation hearing for then-Judge John Roberts a "kabuki dance."  Most of the balance of the statement I have attributed to him in the column is from his opening statement in the Roberts confirmation hearing.  The discussion of his Beretta is taken more or less verbatim from comments he made while campaigning for Vice President.  At the time, it was Barack Obama who, Biden said, would have a problem if he fooled with Biden's Beretta.

-- Sen. Cornyn is very fond of the Second Amendment.  He's from Texas, where he was a Justice of the Texas Supreme Court and Attorney General (not at the same time).  He's against same-sex marriage, which he once compared to marrying a box turtle.

-- Sen. Coburn told then-Judge Sotomayor that under certain circumstances, she "would have some 'splainin to do," thus channeling his inner Ricky Ricardo.  Given the Republicans' desperate desire not to appear anti-Latino, this can only be explained as a Freudian slip on par with Basil Faulty's failed effort not to mention the war:

-- Sen. Graham told then-Judge Sotomayor that she would be confirmed absent a complete meltdown.

-- To my knowledge, neither Senator Whitehouse, nor Senator Klobuchar, nor, for that matter, any Senator in history, has ever asked a Supreme Court nominee whether he or she likes kittens or puppies.  However, many Senators do view it as their job to lob softballs to nominees of a President from their own party.

-- Sen. Schumer likes the spotlight.

-- Sen. Franken is originally from Minnesota but during his many years as a writer and performer on Saturday Night Live and through his other ventures, he lived on the Upper West Side of Manhattan.  I used to see him in the neighborhood occasionally, and once at the dog run my dog Scooter (who was much bigger than his name would suggest) accidentally knocked Franken to the ground while chasing Franken's own dog, a black lab.  I know Franken was a high school wrestler, but when Scooter hit him, he went down like a sack of potatoes.

-- Sen. Franken questioned then-Judge Sotomayor at length about Perry Mason.  This was arguably his most coherent line of questioning.