Couldn’t Kagan and the confirmation team at the White House have come up with something that would convey a more concrete idea of judicial impartiality? John Roberts’s comparison of judging to baseball umpiring may have been a superficial analogy in any number of respects, but it embodied an immediately intelligible idea of impartiality that cast conservative judging in a favorable light. The best evidence of its rhetorical effectiveness is that it became a touchstone for evaluating subsequent Supreme Court nominees. That’s the kind of statement you’d expect from a judge who’ll be drafting influential opinions.“[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”
Kagan’s tin-eared formulation doesn’t inspire that expectation. I hope the questioning will reveal that she was pulling her punches.