kuxiao17

The chummy, Happy Jack Squirrel time atmosphere of Elena Kagan's confirmation hearing is a little hard to take. Yes, she is "likable enough,"

to borrow Barack Obama's phrase about Hillary Clinton, but that won't make her any less destructive on the Supreme Court. If anything, it

will make her more so.

Though generally pleasant, she has seemed a bit cocky and dishonest at times during the hearing. Notice that she is quite the confident

expert on conscientious judging for someone who has never done any. And somehow Thurgood Marshall's doting pupil has suddenly become an

"originalist."

She offered up several apple-polishing disclaimers about judicial restraint to a few skeptical senators, but she never actually repudiated

her staggeringly inane tribute to Thurgood Marshall in the Texas Law Review. "Our modern constitution is his," she burbled with approval in

that article. It is a "thing of glory."

Even in the hearing on Tuesday, where she was clearly working hard to fog up fundamental issues as much as possible, she asserted that the

meaning of the Constitution can change "outside" of the amendment process. In other words, activist judges can change it. To the extent that

she articulated her understanding of "originalism," it sounded very slippery: not fidelity to the meaning of the Constitution, but to the

"intent" of it.

What, exactly, does "intent" mean? Anything Thurgoodian justices want it to mean. True, she said that judges are bound by the specific

requirements that the Founding Fathers placed in the Constitution, such as the Senate's age requirement of 30 (yet one wonders: Isn't 30 the

new 20? Shouldn't that requirement "evolve" too under the superior understanding of modern justices?). But she also implied that judges can

freewheel with less obvious parts of the Constitution when the country is likely to enjoy the results of that activism (as with civil

rights).