Instead, Sen. Sessions beat a dead horse during the hearings, with much thanks from both sides. He micro-debated the non-issue of job recruiting by the US military at Harvard, disputing whether it was fair that the military recruiters were subjected to Harvard’s version of “don’t act to challenge Congressional authorization that denies people with an intra-gender sexual orientation the right to be open members of our armed forces; instead move recruiters to another building, hold our noses and open our doors.” The simple shift of locations dramatically concealed Harvard Law’s accommodation with the policy of “don’t ask, don’t tell.” Sen. Sessions missed the opportunity to inquire why, if Dean Kagan inherited this position, she did not lead a review to bring a legal challenge to a stature she felt discriminated; he should have asked in fact, is she tough enough to confront issues head-on that seem to violate original intent and non-discrimination statures, even if the battle and its results would be wildly unpopular.
Elena Kagan listening during her confirmation hearing.
Photo by talkradionews; used under creative commons license.
The background noise of states rights, talk of nullification, secession, state legislative changes to federal authority, the delegitimization of political authority seemed to push the Senators to safe bu passioned discussions of pet topics. Actually, delving into the current ambiance of the vox populi and its reading of constitutional law along with the willingness of many States to challenge the Supremacy clause in Article VI would have made a fascinating, free-wheeling discussion of law, its relationship to governing, its role in society, the use and limits of executive power (eg. the Barton apology for BP’s voluntary establishing an escrow account; BP’s swiftest and most transparent action to date.) Sen. Graham came closest to engaging Ms. Kagan in this type of discussion in his questions. Other senators stuck to a narrow review of memos and briefs. Everyone praised the progress of women.
Ms. Kagan was certainly a breath of fresh air. But the Senate committee missed a real opportunity to give Ms. Kagan a true chance to shine.
July 1st, 2010