The Oath (36 page)

The Kagan and Sotomayor nominations showed how politicized the confirmation process had become. After all, there was no doubt that Kagan was intelligent and ethical enough to be a Supreme Court justice. Perhaps, on those grounds alone, she should have won overwhelming confirmation in the Senate. As recently as 1993, Ginsburg had received ninety-six votes, and her background, which included extensive work on behalf of the American Civil Liberties Union, was far more politically controversial than Kagan’s. The same point could be made about the opposition to Alito, who won by only 58–42, despite formal qualifications that were as good as or better than Kagan’s. By 2010, it was clear that the days of confirmation with ninety-plus votes for anyone were over.

In a way, the politicization of the process was healthy, or at least revealing. The Supreme Court is not an honor society for smart people. It’s the final arbiter on scores of the most controversial political issues in the United States, including gun control. The NRA was under no obligation to indulge the persistent myth that qualities like intelligence or integrity mattered most for a Supreme Court justice. Ginsburg had intelligence and integrity; so did Scalia. What mattered far more was their ideology, which compelled them to see the Constitution in very different ways. Based on the available record, it was a reasonable conclusion that Kagan would be hostile to the NRA’s interests. Opposing her confirmation was the rational thing for the NRA to do.

Still, as Kagan headed into her hearings, her prospects looked bright. There was no hint of opposition from any of the fifty-nine Democrats in the Senate and no talk of filibuster from the Republicans. The arithmetic
looked stacked in her favor. As with other recent Supreme Court nominees, Kagan’s job in testifying was to stay out of trouble.

There was some irony in Kagan’s embrace of the say-little approach that had become the norm for prospective justices in the post-Bork era. In 1995, when Kagan was still a junior professor, she wrote a 10,000-word article for the
University of Chicago Law Review
cogently
laying out the absurdities of contemporary confirmation hearings. They were “a vapid and hollow charade,” she wrote. “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” For current nominees, Kagan wrote, “the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence.”

That, of course, was the route that Kagan took. Confronted with her article at the hearing, Kagan hedged. “I do think that much of what I wrote in 1995 was right, but that in some measure I got a bit of the balance off. I skewed it too much toward saying that answering is appropriate even when it would, you know, provide some kind of hints,” she said. “And I think that that was wrong. I think that, in particular, it wouldn’t be appropriate for me to talk about what I think about past cases—you know, to grade cases—because those cases themselves might again come before the court.” In one respect, Kagan’s 1995 article did anticipate the kind of justice she would become—because the bracing, colloquial writing style quickly showed up in her opinions.

The Kagan hearings were significant more for what the senators said than for what the nominee did. It was clear that originalism had become official Republican policy—an enormous achievement for Antonin Scalia, who essentially introduced the idea to the wider world only about two decades earlier. As Senator John Cornyn, of Texas, framed the issue, constitutional law amounted to a contest between “traditionalists” who feel bound “to a written Constitution and written laws and precedent” and judges who believe in “empathy, as the president has talked about it, or a living Constitution, which has no fixed meaning.” Tom Coburn, of Oklahoma, said that any view of the Constitution except “original intent is going to give a lot of people in this country heartburn, because what it says is our intellectual capabilities are better than what our original founding documents were, and so we’re so much smarter as
we’ve matured that they couldn’t have been right. And that’s dangerous territory for confidence in the Court.”

Like Obama himself, Kagan did little to fight back against these notions, but there was a cost to their silence. Left unrefuted, originalism began to look like the status quo. There was no one to say that an eighteenth-century document that embraced slavery, that ignored women, and that limited the right to vote was an imperfect guide in resolving contemporary problems. No one made the argument that it was impossible to determine precisely what the framers meant in every provision (or that they often disagreed with one another about what the words meant). No one said the Constitution’s values might be as important as its specific words, or that the framers never wanted or expected later generations to honor their precise understanding of their words, or that the Supreme Court’s own interpretations of those words over time had value, too. Instead, the field was left to the Cornyns and Coburns. For Kagan, it was safer to glide frictionlessly to confirmation. There was only one moment that anyone would remember from Kagan’s hearing. In an awkward introduction to a question about the terrorism arrest of Umar Farouk Abdulmutallab on December 25, 2009, on a Northwest Airlines flight to Detroit, Lindsey Graham asked Kagan where she was on that Christmas Day. Kagan didn’t understand the question at first, but then after Graham clarified it, she started laughing. “You know, like all Jews, I was probably at a Chinese restaurant,” Kagan said. The answer brought down the house and may rank as the most famous utterance by a Supreme Court justice since 1964, when Potter Stewart gave this definition of hard-core pornography: “
I know it when I see it.”

On August 5, 2010, Kagan was confirmed by a vote of 63–37.

THE TEA PARTY AND THE JUSTICE’S WIFE

T
he confirmation of Elena Kagan was just about the last piece of good news Barack Obama received in 2010. The legislative horse trading that was necessary to pass health care reform offended many voters. The oil spill at the Deepwater Horizon drilling rig in the Gulf of Mexico took many long weeks to control. Above all, the economy failed to improve. Most of the political energy in the country during the period belonged to the Tea Party.

In certain respects, the Tea Party merely reflected the contemporary Republican Party; it was antitaxation, antiregulation, and anti-abortion. But the Tea Party was distinctive in other ways. Initially, it was largely a grassroots movement prompted to action by a spontaneous cry from CNBC’s Rick Santelli. On February 19, 2009, from the floor of the Chicago Mercantile Exchange, Santelli denounced Obama’s mortgage assistance plan as “promoting bad behavior” and rewarding “the losers.” He called for a Chicago Tea Party in July. From this spark, legions of conservatives began speaking out at town hall meetings held by members of Congress in their home districts. The protesters raised various issues at the meetings, but their most frequent target was Obama’s health care reform plan.

The Tea Party remained a decentralized movement, without a single leader or platform, but it is possible to generalize about some of its distinctive qualities. Its partisans often spoke out against “elites,” like the highly educated president and the similarly credentialed experts in his administration. Members of this movement thought they could understand the issues facing the country as well as anyone else. As Theda Skocpol and Vanessa Williamson observed in their broad study,
“Tea Party skepticism about experts is part and parcel of their direct approach to democracy,
their belief in citizen activism.” In particular, these activists thought they could interpret the Constitution better than the law professor president.

The Tea Party cared deeply about the Constitution. They passed out copies at rallies. They referred often to the Tenth Amendment (which refers to states’ rights) and the commerce clause (which limits the scope of federal legislation) and cited Supreme Court decisions, often with derision. More than any other conservative movement of the last several decades, the Tea Party embraced a party line about the Constitution. Above all, Tea Party members were originalists, dedicated to restoring the modern government of the United States to the views, as they understood them, of the eighteenth-century framers. In this respect, the Tea Party reflected the broad triumph of originalism, which was also seen in the questions at Kagan’s confirmation hearing. Originalism had not yet fully triumphed at the Supreme Court, but it had become the quasi-official legal theory of the Republican Party.

Many of the key figures in the Tea Party movement were fascinated, even obsessed, by the text of the Constitution and its origins in eighteenth-century Philadelphia. Glenn Beck, the radio and television personality who was initially the personification of the movement, talked incessantly about the Constitution and wrote a book called
The Original Argument: The Federalists’ Case for the Constitution
,
Adapted for the 21st Century
. As Beck wrote:

Mark R. Levin, a radio talk show host and lawyer and another Tea Party favorite, wrote a series of best sellers devoted to supposed liberal perfidies about the Constitution. His first, published in 2005, was called
Men in Black: How the Supreme Court Is Destroying America
and
featured such chapters as “Al Qaeda Gets a Lawyer,” “Socialism from the Bench,” and “Liberals Stack the Bench.” As soon as Obama was elected, Levin wrote
Liberty and Tyranny
, his most successful book, which included a paean to the
Lochner
era on the Supreme Court, when the justices repeatedly struck down social welfare legislation. To Levin and the Tea Party, small government was not just a policy preference but a constitutional command. Modern justices, and Obama himself, “are an arrogant lot who reject the nation’s founding principles,” Levin wrote. “They teach that the Constitution should not be interpreted as the Framers intended.… No literate person can comprehend the Fourteenth Amendment to mean what the [liberals]
in academia claim it to mean.” In the political arena, Michele Bachmann, the Minnesota congresswoman embraced by the Tea Party, often described herself as a “constitutional conservative”—as if the views of the movement were mandated by the Constitution itself.

In fact, the Tea Party version of originalism went well beyond anything most of the current justices believed. Tea Party partisans insisted, like the conservative justices of the 1930s, that the Constitution forbade the regulation of the national economy. They rejected decades of cases that called for at least some separation of church and state. They believed that power should be concentrated in the states, rather than the federal government, in defiance of Supreme Court precedents that went back a century. In short, the constitutional interpretations of the Tea Party conflicted with those of every Supreme Court justice who had served on the Court since World War II—except for one: Clarence Thomas.

On September 12, 2009, tens of thousands of opponents of Obama’s agenda, especially his proposed health care reform, gathered in protest at the west front of the Capitol. FreedomWorks, the conservative organization led by Dick Armey, the former Republican leader of the House, helped organize the rally, and Armey was by that point an orchestrator, if not an actual leader, of the Tea Party movement. “Give me liberty or give me death,” Armey told the crowd. “Well, Barack Obama is trying to make good on that.”

The September 12 rally, and the Tea Party movement, had a transformative effect on the life of Virginia Lamp Thomas. Ginni Lamp grew
up in Omaha, in a wealthy
family prominent in Republican politics. She went to Creighton, in her hometown, for college and law school and moved to Washington to work for a Republican congressman, Hal Daub. In 1985, she moved to the United States Chamber of Commerce, where she fought regulations on businesses. At a conference on affirmative action sponsored by the Anti-Defamation League, Lamp met Clarence Thomas, who was then chairman of the EEOC in the Reagan administration. They married in May 1987.

During the Clinton administration, Ginni Thomas went to work for Armey, who was then the House majority leader under Speaker Newt Gingrich. Ginni was already a well-known figure in the conservative world. She was not a theoretician or a writer but an organizer, a connector of people with jobs and ideas. The work matched her temperament, which was outgoing and jovial. In 1998, she went to work at the Heritage Foundation, one of the leading conservative think tanks in Washington. Between George W. Bush’s election in 2000 and his inauguration, Ginni was assigned the job of matching conservatives with political jobs in the new administration. She served as the think tank’s liaison with the Bush White House.