Sealed with a smile: the Supreme Court nominee with a sense of humour

Click to follow

You can hear things erudite or profound, banal or downright weird at confirmation hearings for a Supreme Court nominee. But you do not often hear a good Jewish joke.

But that happened this week, when Elena Kagan was in the hot seat.

"Where were you at Christmas?" asked one of her Republican interrogators on the Senate Judiciary Committee, trying to elicit her view on the attempted bombing of a commercial airliner as it prepared to land at Detroit last 25 December. To which Ms Kagan replied, quick as a flash: "Like all Jews, I was probably at a Chinese restaurant."

The panel, and everyone else in the packed committee room, broke up in laughter and Ms Kagan's confirmation as the 112th justice in the 220-year history America's highest court was no longer in doubt (not that it ever really had been, barring a calamitous gaffe or quite unforeseen revelation).

The 19-member panel is expected to take a formal vote the week after next, when Congress returns from its 4 July recess, and the full Senate shortly thereafter. But the Republicans have ruled out a filibuster, and with a 58-41 majority the Democrats have more than enough votes to prevail. The sole uncertainty is whether Ms Kagan will pick up as many Republican votes as did Sonia Sotomayor, President Barack Obama's first nominee who underwent a similar ordeal exactly a year ago before being confirmed by 68 votes to 31.

The consensus is that she probably will not. But that relative failure is no reflection of the positive impression she made on her inquisitors, merely that mid-term elections are fast approaching and few Republicans dare be seen cutting the President an inch of slack.

More than anything, Ms Kagan came across as a jolly Jewish momma from New York (though she has no children and has never married), with a formidable mind and an independence of spirit in keeping with the girl who once argued with her rabbi about the organisation of her bat mitzvah. On occasion, she seemed to talk a little too much, but her warmth and self-deprecation were hard to resist.

The Christmas joke was not the only one. Asked whether she favoured allowing the twice-weekly oral arguments at the Court to be televised, she said, "Yes, except that it means I'd have to get my hair done more often." Even Tom Coburn, an Oklahoma Republican on the panel who is well regarded by the far-right Tea Party movement, had to admit to Ms Kagan that "you kind of light up a room".

But in other respects she was far less illuminating. Supreme Court confirmation hearings these days follow a well-trodden routine, in which everyone knows their part. The committee members (especially those of the party opposing the President) try to elicit information about the candidate's views on the big issues of the day: gun control, abortion, the rights of terrorist suspects and so on. The nominee gives away as little as possible, insisting it would be wrong to indicate how he or she would rule on specific topics that were bound to come before the Court.

Alas, once the initial theatricality of the occasion wears off, the ritual makes for less than compelling viewing. Ms Kagan said she was indeed a "progressive" (whatever that means), but also her belief that the Supreme Court should generally adopt a modest approach. Otherwise, for all the banter, she never dropped her guard.

At one point Senator Amy Kobuchar, a Minnesota Democrat and undisguised fan of Ms Kagan, started talking about the latest Twilight movie. Was the nominee "on Team Edward or Team Jacob", Ms Kobuchar wondered, referring to the struggle between the vampires and the werewolves, only to quickly cut herself short. "I know you can't comment on future cases. So I'll leave that alone."

But Ms Kagan would not escape that lightly. As several committee members noted, had not she, back in 1995 when she was a university law professor, described Court confirmation hearings as a "vapid and hollow charade"? The lady said that had she known she would one day be the subject of such hearings, she would have used different words.

But that was not enough for Arlen Specter, a crusty old Democrat from Pennsylvania and a former chairman of the committee. He felt insulted, he declared, by the "pure prepared Pabulum" from Ms Kagan, little more than stock answers drawn up beforehand by an army of White House lawyers.

The questioning occupied 17 hours over two days, covering issues ranging from such arcanities as the commerce clause of the constitution, to Ms Kagan's decision when she was Dean of Harvard Law School to bar military recruiters from the campus, in protest at the ban on gays and lesbians serving openly in the armed forces.

But little of consequence was gleaned. Everyone played their appointed roles. Ms Kagan dispensed platitudes about the honour of public service and the majesty of the law. The senators probed, scored party points and argued among themselves. But what remained in the memory was the joke, or what the Jewish-American paper Forward called "Congress's most Jewish moment ever".