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U.S. Supreme Court nominee Elena Kagan listens to a question from members of the Senate judiciary committee on the third day of her confirmation hearings on Capitol Hill. (Brendan Smialowski/Brendan Smialowski/Getty Images)
U.S. Supreme Court nominee Elena Kagan listens to a question from members of the Senate judiciary committee on the third day of her confirmation hearings on Capitol Hill. (Brendan Smialowski/Brendan Smialowski/Getty Images)

Even Republicans charmed by Kagan's manner at confirmation hearings Add to ...

Woe is the Canadian politician who would dare suggest the country engage in a "constitutional conversation." Twenty years after the death of the Meech Lake Accord, we still can't go there and maybe never will.

Americans have no such hang-up. Though they disagree profoundly about the meaning of their Constitution, they revel in debating it. The discussion defines who they are and informs their understanding of themselves. We should be so lucky.

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The confirmation hearings this week for Supreme Court nominee Elena Kagan are technically meant to test her worthiness for the top bench in the land. They are also an opportunity for Americans - who take note in surprisingly large numbers - to talk amongst themselves.

"Whether or not the nominee answers specific questions about specific cases, what we see is a nationally witnessed platform at which the different branches of government talk to each other about where they want the constitutional law to go," University of Georgia law professor Lori Ringhand noted in an interview. "That's an important conversation for us to be having as a country."

Prof. Ringhand has tracked every question asked of, and every answer given by, Supreme Court nominees during confirmation hearings since 1939. Ms. Kagan's are actually shaping up to be among the more elucidating. Not to mention entertaining.

"You have engaged, answered questions more fully than any recent nominee," Vermont Democrat Patrick Leahy, chairman of the Senate judiciary committee, said Wednesday after its 19 members wrapped up their questioning of Ms. Kagan. Beginning Thursday, the committee will hear witnesses for and against her confirmation.

There is little doubt which side will prevail.

Even Republican senators, who have tried their best to dislike and discredit Ms. Kagan, have been charmed by her intelligence, quick wit and unaffected manner.

South Carolina Republican Lindsey Graham asked Ms. Kagan "where you were at" on Christmas Day, when the so-called underwear bomber was apprehended in Detroit. Ms. Kagan presumed the senator wanted her views on whether terrorists arrested on U.S. soil could be deprived of habeas corpus rights.

"No, I just asked where you were at on Christmas," Mr. Graham riposted.

Ms. Kagan, in her distinctive New York accent (she makes 'law' sound like 'lor'), deadpanned: "You know, like all Jews, I was probably at a Chinese restaurant."

The vast majority of exchanges between GOP senators and the 50-year-old Ms. Kagan, currently Solicitor-General in Barack Obama's cabinet, were nowhere near as lighthearted. Republicans are naturally suspicious of how Ms. Kagan - who conceded Tuesday that she has "been a Democrat all my life" - would rule on cases involving guns, abortion, campaign spending limits and states' rights.

Two days after the Supreme Court extended the meaning of the Second Amendment's right to bear arms to prevent state and local governments from interfering with it, Oklahoma Republican Tom Coburn pressed Ms. Kagan on Wednesday on whether she personally believed that Americans have a fundamental right to own guns.

"You should not want me to act in any way on the basis of such belief. You should want me to act on the basis of law, the Constitution," she retorted.

For Republicans, however, Ms. Kagan's insistence that she is no judicial activist cuts both ways. They were comforted to hear her affirm she would not seek to overturn Monday's gun ruling or a January Supreme Court decision that struck down limits on corporate spending on elections as a violation of free speech. Both decisions, she said, are now "binding precedent."

"I have no plan, no purpose, no agenda, no anything, to mess with them," Ms. Kagan told Texas Republican John Cornyn.

But her allegiance to judicial restraint also applies to the Obama administration's reliance on the Constitution's so-called "commerce clause" to argue the federal government has the power to force Americans to buy health insurance starting in 2014. Almost two dozen states have launched legal challenges to the health-care law. The Supreme Court will ultimately be called on to decide the issue.

Alabama Republican Jeff Sessions called the commerce clause "the last refuge of a big government scoundrel."

The Constitution, Ms. Kagan said, "assumes Congress knows what is necessary to regulate the country's economy."

Republicans didn't like that answer, but their reaction reflected the opportunistic use of the "activist" label by both Democrats and Republicans alike.

Mr. Graham perhaps defined the term best. An activist judge, he offered, is just "somebody that rules the way we don't like."

Follow on Twitter: @konradyakabuski

 

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