Joe Biden Embarrasses Elena Kagan (and I Console Her)

Even an excellent teacher can do only so much with a dim pupil

Elena Kagan was an assistant professor at the University of Chicago law school when President Clinton nominated Ruth Bader Ginsburg in 1993. Kagan had been in the class behind me at Harvard Law School. We overlapped on the Harvard Law Review for a year, but I don’t recall that we had any substantive interaction. I certainly did not have occasion to discern how genuinely formidable her talents, both legal and political, were.

After graduating from law school in 1986, Kagan clerked for D.C. Circuit judge Abner Mikva from 1986 to 1987 and then for Justice Thurgood Marshall from 1987 to 1988. (Her Wikipedia entry, when last I checked, has the date one year too late for each clerkship.) Ginsburg was one of Mikva’s colleagues on the D.C Circuit, as were Antonin Scalia, Robert Bork, and Douglas Ginsburg.

Kagan’s clerkship years in D.C. were enmeshed in drama over Supreme Court confirmations. In June 1986, just before she began her clerkship with Mikva, Chief Justice Warren Burger announced his resignation. President Reagan nominated Associate Justice William Rehnquist to fill Burger’s seat and Scalia to fill Rehnquist’s. Aiming to kill two birds with one stone, Senate Democrats focused their fire on Rehnquist: if they defeated his elevation, there would be no vacancy for Scalia to fill. But in mid-September the Republican-controlled Senate confirmed Rehnquist by a 65-33 vote (with 16 Democrats voting to confirm and two Republicans voting against), and then promptly confirmed Scalia unanimously, 98-0.

A year later, just after Kagan began her clerkship with Justice Marshall, Reagan nominated Bork to fill Justice Lewis F. Powell, Jr.’s seat. But the Democrats had won control of the Senate in the November 1986 elections and delivered Bork an epic defeat by a vote of 58-42 (with six Republicans voting against and two Democrats voting for). Reagan then announced his intention to nominate Douglas Ginsburg, but when that plan collapsed days later, he nominated Anthony Kennedy. The Senate unanimously (97-0) confirmed Kennedy’s nomination on February 3, 1987.  

In 1993, Senate Judiciary Committee chairman Joe Biden hired Kagan as his special counsel for the confirmation process for Ruth Bader Ginsburg’s Supreme Court nomination. Kagan’s implicit charge was to make Biden look smart. Not an easy task, to be sure.

The hearing was already getting sleepy on the afternoon of the second day when Biden seized an opportunity to show his smarts. Paul Simon, a Democrat from Illinois, had just asked Ginsburg for her thoughts on the so-called Lemon test under the Establishment Clause (set forth in the Supreme Court’s 1971 ruling in Lemon v. Kurtzman), and Biden asked to intervene with a question that he said he hoped “will help clarify rather than confuse.” Except that Biden did exactly the opposite.

Biden began:

The Goldman case to which the Senator referred, the case which is popularly known by most people as allowing a soldier to wear a yarmulke while in uniform— you were a dissenting view in the circuit.

A few problems:

(1) Simon had not referred at all to Goldman v. Weinberger (1986), which involved the Free Exercise Clause, not the Establishment Clause and Lemon.

(2) The Supreme Court’s ruling in Goldman, like the D.C. Circuit’s panel ruling in the case, did not “allow[] a soldier to wear a yarmulke while in uniform.” Rather, the Court ruled 6-3 against the soldier’s Free Exercise Clause claim.

(3) And, as Ginsburg had already explained in the morning session, she had voted to rehear the panel ruling en banc but had not expressed a firm view on the merits.

When a fellow senator tried to nudge Biden to “clarify” his confused account, Biden made it worse:

In other words, the judge [Ginsburg] took the position that a soldier could wear a yarmulke while in uniform, notwithstanding a military prohibition against such use, she arrived at that decision using reasoning I will not go into now, but it relates to this question…. Her opinion ended up being the majority opinion of the Supreme Court.

At this point, Ginsburg had to interrupt Biden: “I wish it did.”

Biden tried once more, and then collapsed:

But you reasoned and argued, reasoned in your opinion when it was before you, that the soldier in question should be able to, under the free exercise clause—explain the case to me.

Ginsburg proceeded to explain what the case was about and her limited role in voting for rehearing en banc, leading Biden finally to grasp that “you ultimately did not reach a conclusion whether or not it violated his constitutional right.”

But Biden then topped things off with this nonsensical question: “Would there have been any question in your mind about the need to rehear it had the Lemon test been in place?” As Ginsburg had already explained, the Lemon test under the Establishment Clause was in place, but it had nothing to do with the Free Exercise issue in Goldman. Ginsburg very gently replied to Biden that “this was a free exercise case.”

Kagan was sitting immediately behind Biden during this episode, and I, immediately behind Hatch’s seat, was right next to her. I could see a look of dread cross her face as her dim pupil stumbled from one confusion to the next. To console her, I whispered, “Don’t worry. No one’s paying attention.”

If you ever wonder why a senator seems ill-prepared for a confirmation hearing, just remember that even a very talented teacher can do only so much for some students.