Who's Who On The Judiciary Committee

The Confirmation Process: Is this the Judiciary Committee We Deserve?
By Elie Mystal, Above The Law
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A lot of ink (virtual and otherwise) has been spent the last couple of days grading Elena Kagan’s performance at her Senate confirmation hearings. If confirmed, this week is the last time Kagan has to talk to the people, so it’s right to focus on how she did.

But there seems to be a media blind spot when it comes to grading the Senate Judiciary Committee itself. These 19 elected representatives are entrusted with the awesome responsibility of being the people’s voice in a process that ends with a lifetime appointment; yet few seem to care if these guys are doing a good job — or if they even know what they are talking about. Sure, we’ve got to live with confirmed SCOTUS Justices for the rest of their lives, be we have direct electoral control over the Senators who do the confirming. Is it too much to ask that we find 19 people in the entire U.S. Senate that actually understand what judges do for a living?

Let’s get this ball rolling. Which Senator best fulfilled his or her duty to all of us, and which ones need to be transferred to Foreign Relations — where only our enemies and allies have to suffer under their stupidity?

Let’s take a look at all 19 members of the Senate Judiciary Committee and grade how they did during the Kagan confirmation hearings. (Ed Note: A+ is a grade that is as stupid and redundant as an F-. Neither will be used below.)


Pat Leahy (D-VT): Grade B
As committee chair running the hearing for a nominee from his own party, Leahy’s job was to keep things moving while making sure the opposition party had enough freedom to make all of their points. He did that well with a kindly, grandfatherly approach to the proceedings. In fact, most of the time you didn’t even know Leahy was in the room. Like any good umpire, that’s a good thing.


Jeff Sessions (R-AL): Grade D
While Sessions did a great job of getting on television with his criticism of Kagan’s stance towards military recruiters while she was at HLS, the political points he was trying to score were totally irrelevant to his actual job during these hearings. Sessions tried to paint Kagan as a person who hates the military — she doesn’t but even if she did it’s hard to see what that has to do with her judicial philosophy? The real issue with HLS military recruiters was Kagan’s stance on don’t ask, don’t tell which might have actually been relevant. But Sessions could never get there because he was too busy trying to rile up the troops. Pandering at its worst.

I’d give him an F but undoubtedly there are some Americans who’d feel underrepresented if they didn’t have a Senator like Sessions up there, defending their right to totally mangle a set of facts.


Herbert Kohl (D-WI): Grade F
It would be hard to believe that any American over the age of five wanted to know the answer to any of Sen. Kohl’s questions. His very first question — after Sessions screamed at Kagan for half an hour — was something like “why do you want to be a Justice?” Simply awful.


Orrin G. Hatch (R-UT): Grade A
You could argue that all the other Republicans should have ceded their time to Hatch and just let the man do his work. Every Democrat, from the President on down, has been bashing the Court over the Citizens United decision. Hatch used his 30 minutes to take America to school about the case. Then on day 2 he hammered Kagan so hard on partial birth abortions you could almost see her crawling up under Bill Clinton’s apron for cover.

The only criticism one could level is that Hatch’s speeches didn’t at all require Elena Kagan to be in the room. But in a world where Kagan is going to get confirmed anyway, at least Hatch used his speechifying to good effect.

Dianne Feinstein (D-CA): Grade B+
Feinstein had a technically difficult role. As the first of only two women on the committee she had to do the whole “yay, women on the Court” thing. She had to rehabilitate the liberal problem with Citizens United after Sen. Hatch destroyed it for 30 minutes. And she had to give the liberals that are uncomfortable with Kagan a little red meat — given that during Leahy’s questions I thought he and Kagan had a date to go shoot some deer. She also got Kagan to explain the Chevron doctrine — right in Kagan’s wheelhouse. Quality all around from Sen. Feinstein.

Chuck Grassley (R-IA): Grade C
Chuck Grassley is “not a lawyer.” He said so. He certainly acted like he wasn’t a lawyer. He seems very proud of this fact. Funny then that he’s in charge of being one of the people’s representatives when it comes to voting for lawyers.

Oh, and the next time I want Mr. Not-A-Lawyer from Iowa bitching about the first year curriculum at Harvard Law School will be the first time.

Russ Feingold (D-WI): Grade C
Did you like Diane Feinstein’s questions? Do you just want to hear them again? At some point we have to start docking more junior Senators who just want to repeat everything that’s already been said just so their constituents can hear them say it.

Jon Kyl (R-AZ) Grade B
Say this for Senator Kyl, he knows something about past Supreme Court Justices. He didn’t seem to know very much about the person sitting in front of him, but that Thurgood Marshall guy, yeah, Kyl’s definitely heard of him before.

Intellectually, trying to figure out which Justice the current nominee would most be like isn’t the dumbest way to approach this process. He didn’t do it particularly well, but at least he tried.

Arlen Specter (Whatever He’s Calling Himself Today-PA): Grade D-
I won’t give Specter an F out of respect to his fine service to the country and this committee over many, many years.

But this week Specter made himself look like an imbecile. At one point on day 2 he actually asked the nominee why she should have to study something before she could form an opinion. He was OBSESSED with how much time he had to talk, asked convoluted questions that took minutes to form, and then got pissy when Kagan didn’t answer in “yes/no” fashion. I could go on and on, but Specter has had more than enough time on the political stage. Good Day, Sir.

Lindsey Graham (R-SC): Grade A-
I docked Lindsey Graham a third of a grade for his unbelievably condescending tone. It is insufferably grating. But I can’t dock him more for that because I know in some parts of the country this kind of grating, paternalistic egomania is what passes for “hospitality” and “charm.”

Otherwise, Graham was perfect. He knows the difference between statutory law and judge-made law — and respects both equally. Sure, he has an agenda, so do the judges, and he tries to get to that agenda without seeming offended that judges have to interpret the often nonsensical crap that comes out of Congress.

Chuck Schumer (D-NY): Grade C
During these hearings Sen. Schumer didn’t help me understand the nominee in any way. Nor did he make a particularly good speech about some area of the law that he is passionate about. Schumer could have been replaced by nearly any Democrat in New York City and nobody would have noticed the difference. If you gave Chuck a VORP score, it’s be a perfect zero — no value over a replacement “democrat.”

John Cornyn (R-TX): Grade C-
Cornyn talks a big game on television. But when he gets into the hearing room, he adds no value. He does absolutely nothing to resolve the issues he’s been gnashing his teeth about on television the day before.

His questioning might as well be paraphrased to this: I want Justices who agree with my political agenda. Do you agree with my political agenda?

Dick Durbin (D-IL): Grade C
If Chuck Schumer were from Illinois, he’d be Dick Durbin. We didn’t need two people to ask the same set of questions.

Tom Coburn (R-OK): Grade D
Tom Coburn read the Federalist Papers AND HE WANTS YOU TO READ THEM TOO. On day 1 Coburn spent a lot of time on a convoluted vegetable analogy about what would happen if Congress forced people to eat three vegetables a day. On day 2 he revealed that this analogy had everything to do with Health Care. Somewhere in between, we found out that Coburn thinks the Court’s interpretation of the interstate commerce clause is over-broad.

I was thinking of giving Coburn a C- but dropped him down to a D for this reason: people who are actually conversant with the federalist papers don’t refer to “the federalist papers.” They refer to a specific federalist paper. Perhaps Federalist 41 if he was trying to say that Congress had overstepped its enumerated powers, or maybe Federalist 51 if he wanted to say that the judicial branch had overstepped its power? I don’t really know, I don’t know what the man was trying to say, but specificity would have been more helpful than a prop. Political Science FAIL, Sen. Coburn.

Benjamin L. Cardin (D-MD): Grade C-
Ben Cardin used his time to explain his life story to a country that doesn’t know who the hell he is. Note: Nobody knows who you are, Senator “Oh that guy” from Maryland or Montana or something.

Sheldon Whitehouse (D-RI): Grade C+
Sheldon Whitehouse does not think the Court should overturn previous precedent based on 5-4 decisions. He’s cool with 7-2, but 5-4 just has too much of a taste of, oh what’s the phrase, MAJORITY RULE.

Amy Klobuchar (D-MN): Grade A-
Here’s the bottom line with Senator Klobuchar — you could argue that the Twilight reference was one of the dumbest things ever said in a Supreme Court confirmation hearing, but the mere mention of Twilight captured the attention of popular culture. Young girls who watch these movies and probably couldn’t identify Elena Kagan if she was coaching their softball team, suddenly had something to care about. If you are not going to ask the nominee anything legally relevant (and Klobuchar did not), doing something that makes the process seem accessible and interesting to young people is probably the most valuable way to spend your thirty minutes.

Ted Kaufman (D-DE): Grade B-
Ted Kaufman knows about corporate law. He has to, it’s part of the job of the Senator for Delaware. Sure, he wasn’t able to communicate this expertise in a way that could possibly keep a person awake for 30 minutes, but style isn’t everything.

Al Franken (D-MN): Grade D-
Al Franken was caught napping and doodling. When he finally got to talk, he engaged in speechifying about arbitration clauses in contracts, and more stuff about Citizens United. He gave Kagan a case synopsis, screwed it up, asked Kagan to pretend that he didn’t screw it up and engage in a hypothetical, and then went back to speechifying.

Just one man’s take.

What do you think? Please vote in the polls below on who you think acquitted themselves well, and who needs to make way for more competent Senators.