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89 Ind. L.J. Supp. 1 (2013)

handle is hein.journals/spplmntinlj5 and id is 1 raw text is: Doctrinal Conversation: Justice Kagan's Supreme Court
Confirmation hearings are sometimes memorable for their moments of high
drama, as in Clarence Thomas's fiery attack on the Senate Judiciary Committee,i or
apparent blunders, as in Robert Bork's seeming rejection of a major Supreme Court
desegregation decision,2 or flashes of human emotion, as in Martha-Ann Alito's
tearful departure after her husband was asked a provocative question.' In contrast,
Elena Kagan's confirmation hearing is likely to be remembered for something quite
different: the nominee's humorous comments that the transcript repeatedly records
as followed by [Laughter.]4 When, in a lead-in to a question about an attempted
terrorist attack, South Carolina Republican Senator Lindsey Graham asked Kagan
where she was on Christmas Day, she famously replied You know, like all Jews, I
was probably at a Chinese Restaurant.' Graham, presumably startled, was
nonetheless appreciative, responding Great answer. Great answer, before
returning to his serious theme.
Kagan's humorous comments were not simply isolated jokes intended to lighten
the hearing's atmosphere. They served as well to build bridges between the
nominee and her examiners, to inject a human element into what at times showed
signs of becoming an adversarial process, and to create a rapport with observers as
well as Judiciary Committee members of both parties. Questioned about her law
review article calling for substantive exchanges between senators and Supreme
Court nominees, Kagan was quick to acknowledge the tension between that article
and her reticence in providing specific answers. When Senator Patrick Leahy noted
of the article that [y]ou probably reread those words, Kagan replied Many times.
... And you know what? They have been read back to me many times.' Asked by
Senator Grassley about a thesis she wrote as a student at Oxford University, Kagan
was candidly ironic: Senator Grassley, she replied, all I can say about that paper
is that it's - it's dangerous to write papers about the law before you've spent a day
' Copyright C Laura Krugman Ray 2013.
* Professor of Law. Widener University School of Law: LD.. Ph.D.. Yale University
A.B., Bryn Mawr College. I am grateful to Jean Eggen and Philip Ray for their valuable
comments on earlier drafts of this Article.
THOMAS 289-90 (1994).
232-33 (1989).
3. Neil A. Lewis, Court in Transition: In the Background; An Intense Experience for
Family Members, Too, N.Y. TIMES, Jan. 12, 2006, at A27.
4. 23 Hearings and Reports on Successful and Unsuccessful Nominations of Supreme
Court Justices by the Senate Judiciary Committee 1916-2010, at 62, 79, 88, 95, 118, 128,
136, 144, 208, 262, 266, 277, 281, 292.
5. Id. at 144.
6. Id.
7. Id. at 62.

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