June 30, 2010

Am I sorry not to be live-blogging the Kagan hearings today?

I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:
Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.

Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses.  We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)

I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.

Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....


And we know where the ripe black raspberries are!


MadisonMan said...

I've been eating blackcaps along the SW Bike path for a while now. One of my favorite parts of Summer!

Quayle said...

Senator Quayle's first question:

Ms. Kagan, we talk a lot about "rights" in our country - people saying they have a "right" to do this or should have a "right" to do that - Could you tell us, please, in your world view, from where do our rights come? From where do "Human Rights" emanate?

(Then the fun starts after her answer, whatever it is.)

Trooper York said...

Senator Trooper's first question:

Who's on first?

Old Dad said...

Black raspberries, uhhmm--pies, jam, jelly. My Old Dad and I used to pick'em by the gallons. Here's a little trick. Cut the top off a plastic gallon milk jug. Thread your belt through the handle and presto, you've got a perfect picking set up, and you can pick with both hands!

John Stodder said...

I would want to know how much FIresign Theater she knows by heart.

Ms. Kagan, complete this sentence: "Alligator pears, crocigator pears, that's why _____ ____ ______"

Dead Julius said...
This comment has been removed by the author.
Ann Althouse said...

@MadisonMan You're eating blackcaps?!

Ann Althouse said...

@Julius Stop talking in extravagant abstractions. Be specific and concrete. Otherwise you're just raving and no one will listen.

traditionalguy said...

IMO Kagan likes to function in social groups and prove to them her smartness and worth. She could easily turn into a reasonable Justice who follows the law once she is a part of the Court. Destroying legal boundaries everywhere, as Progressives always want to do, is not an obvious part of her self image. She may be the least bad nominee we can expect from Obama.

Big Mike said...

Maybe we should adopt the British-ism "arse"?

You asked why the Senators don't do better, Professor, and the answer is quite simple. Every Senator has two ends, one for thinking and the other for sitting. And since everything they have depends on their seat ...

Q. E. D!

Hagar said...

Oh, and aren't "black raspberries" called just blackberries?

Dead Julius said...

OK, Althouse, I'll try. Some specifics:

1. McChrystal's firing. Don't you think the Senators are somewhat shocked by this, and don't you think that it perhaps suggests to them that our foreign wars might be out-of-control?

2. The BP oil spill. The public is pissed; nobody's got a solution. Another out-of-control problem...

3. Obama. He said one thing to get elected, now he's doing something completely different; and the folks on the Right are still smarting from the ramming-through of the health care bill. If I were a Republican Senator, I would probably think that the Office of the President is out-of-control.

And the list could go on... The economy-- how is it going to recover? There doesn't seem to be a way for it too.

With all this, does it matter if Kagan is not ideal? At some point, the desire to fight for what you believe is lost... Where is that point? Are Establishment Republicans already there?

Big Mike said...

Professor, MadMan is talking about this mushroom.

He's trying to stop drinking, and the fact that it's poisonous when imbibed with alcohol.

You knew that, right, MadMad? MadMan? Are you there?

c3 said...

I've only seen snippets of the hearings but my general conclusion is that we've made some progress in the "post-Bork" era. My sense is Kagan has been more forthright than Sotomayor. That's good.

We know she will be approved. That's the presidents prerogative. She's qualified. OK so we have to put up with Senators posturing for constituents but it seems a bit less kabuki.

Old Dad said...


Don't know what part of world you hale from but in Indiana there are black raspberries, red raspberries, and blackberries. The blackberry is a different critter, easily distinguished from a raspberry. Black raspberries are the best. Reds are good but a little tart. Blackberries are pretty pulpy and tasteless. We never bothered with them at all.

edutcher said...

Ann Althouse said...

Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet.

There's an old saying among cops - All the lawyers who got A's in law school became defense attorneys, all the lawyers who got B's in law school became prosecutors, all the lawyers who got C's in law school became judges, and all the lawyers who got D's in law school went into politics.

PS Gorgeous photo, very evocative. Though The Blonde hates raspberries, I'd love to take her walking through that field. I'm sure we could find something she'd love.

Dust Bunny Queen said...

Wow. I learned something new today. I never heard of black raspberries. They sound delicious

We have blackberry bushes and red raspberries and Marion berries on our property and in the areas around us. We pick the wild blackberries by the gallons and make jam.

But...I don't think we have black raspberries.

The wild plum trees are going to be loaded again this year. Wild plum jelly......yum

Triangle Man said...


That must be a very old saying indeed. With grade inflation, politicians are B+ students now.

Comrade X said...

traditionalguy said: She could easily turn into a reasonable Justice who follows the law once she is a part of the Court. Destroying legal boundaries everywhere, as Progressives always want to do, is not an obvious part of her self image. She may be the least bad nominee we can expect from Obama.

You thought the same of the wise latina. Does her opinion in MacDonald change your view?

Old Dad said...


Down home, the black and the red raspberry are shaped the same, but the black raspberry is bigger and grows on a taller cane. Both start out red, but the black gets dark purplish almost black as it ripens. When they're over ripe they are black. Reds get dark to medium red. Black berries are a cane fruit, but we never found very many out in the boonies. Some folks grew them at home. I never cared for them. They have a different shape. They get more of an oval shape, and they're usually a little bigger than a raspberry, and they're pulpy, about the consistency of a mulberry which I don't care for either. And wild plums--uhhm, uhhm.

Quayle said...

Senator Quayle's second round of questions:

"Ms. Kagen, please tell us what activities you participated in to prepare for this hearing? Were you in mooting session? Why? What objective did all those preparation sessions have? What purpose is served? Why not just come and spontaneously answer questions so we can get a good feel for you - unscripted? Did you script for whether I asked you who the greatest short-stop was of all time?)

ricpic said...

But do you think that law includes a component that comes from deep values and human empathy?
The secret answer is: Yes.

Prioritizing empathy over the attempt (however imperfect) at objectivity subverts the rule of law. Althouse knows this. Witness her admission that the secret answer is yes.

Saint Croix said...

I think pro-lifers are interested in attacking Kagan. I would like to see a big question. "What is a person? How do you define what a person is? Is a baby in the womb a person? What's the difference between the discussion of "person" in Roe and Dred Scott?

She will probably duck this question, too, but there should be a fight on it. I discuss the pro-life argument here

Dust Bunny Queen said...

Black berries are a cane fruit, but we never found very many out in the boonies.

They are all over the place here and very invasive. I hate the wild blackberries that on our property. I think they hate me too since I can't go past them without the canes snagging on my clothing and digging thorns into my skin.

Every year I have to get out the pruners and wack back the bushes so I can get to the irrigation spigots.

Maronberries....nom nom nom.

lyssalovelyredhead said...

St. Croix,
When my Con Law class got to Roe v. Wade, the prof noted how quickly the court dismissed the question of whether or not the fetus was a person. I was really surprised at the students, some of which I had taken to be left of center, who criticized that aspect of the opinion, arguing that it should at least have been considered in detail.

It would be really interesting if the court suddenly decided to revive that question.

- Lyssa

ricpic said...

Maybe the senators are too dumb to think on the spot, but don't they each have a score of aides or assistants to either prep them or hand them sharp questions at the hearing? I know that reading isn't beyond them.

Saint Croix said...


Carhart in particular opened the door for just that sort of discussion. Since the baby was in the process of being born, why didn't personhood attach? And yet nobody brought up the argument. Unbelievable, really.

Issob Morocco said...

Ann I wondered why my Black Raspberry bush was a bit shy this year. Isn't it enough that you want to publicize Journolist and make millions for your secret conservative society in Mad Town, but you also have to abscond with some person's Black Raspberries!!! ;-)

The best tasting berries IMHO. Season just ended here.


TMink said...

Old Dad wrote: "Blackberries are pretty pulpy and tasteless."

I wonder if this is a regional thing. I am in the South, and LOVE blackberries because they are so tasty and firm! The only raspberries I get are from the store, so I cannot do a meaningful comparison. I know that raspberries do not do well down here, but I wonder if blackberries do not do well up there?


Issob Morocco said...

Hey TMink,

Black Raspberries are not Blackberries, I know as I have both plus blue and red raspberries. The Black Raspberries are what I would describe as a cross between a Blackberry and a red Raspberry, somewhat tangy, but with a sweet, sugary hit.

Not sure where in the south you reside but wild blackberries are anything but tasteless pulp. That sounds like what you find at the Publix or Food Lion produce aisle.


edutcher said...

Issob, the black razzies sound like something the Blonde would like.

Thanx for mentioning it.

Penny said...

"She may be the least bad nominee we can expect from Obama."

This is my view as well, tg. It also pleases me that there is a whole other group out there...on the fringes of the far left...who may be EVEN more concerned about Kagen's "blank slate" than any of us. They know Obama knows what we want to know, but they can't even trust their own guy to make an appropriate ideological choice.

Unlike mainstream Democrats, they are fighting angry that their man, Obama, has compromised on any legislation whatsoever. They're the group that still isn't over that our healtcare legislation isn't single payer, and that the finance reform was watered down, and that we are still in Afghanistan.

They are also the group that would love to take over the Coffee Party and make it into their version of the Tea Party because they are spitting mad that the tea party seems to be having more success than they are with their own agenda under a Democratic Congress with a Democratic President who was supposed to be the far left, progressive dream candidate.

Cedarford said...

Hagar - "Elena Kagan has stated that her legal hero and guiding light is Justice Barack of the Israeli Supreme Court. Israel being Israel, Justice Barack's guiding light would presumably be the Torah. Is not that rather a long ways from Blackstone's Commentaries.."

Kagan rather adroitly explained her admiration for the Israeli judge as one of many legal scholars she admires - while saying she disagrees with his activism and desire to use law to bypass democratic institutions to "transform Israel". She was strong about noting that Israel has neglected to create a Constitution - so Judge Barak is not constrained like any US judge or other government official is obligated to do so in America.

And she was careful to say she shares none of the progressive legal transnationalism that infects others. (Unsaid, that would be the two Jews, Breyer and Ginsburg, already on the Court. Who also infected Kennedy and O'Connor with junk like looking to Zimbabwe's Constitution about emenent domain, and citing EU law in opposing death penalty rulings.)

Kagan said her limits would be looking at international law with respect to common treaty, international business, laws of war - but would not be looking to foreign lands for "wisdom" on domestic matters because all judges are bounded by the Constitution and American legislated law.

Kagan placed herself outside the progressive Jew, transnationalist, look to the Talmud - school - that is out to transform US law away from coming from the American people and the Constitution. That is a very good thing.

She also gave good testimony that she views Amendments as a moderate, not absolutist. No Amendment can wreck public safety or violate other parts of the Constitution from claiming the absolute full expression of the Amendment trumps all.

And she is not an enemy rights lover who thinks war can be fought under US criminal law and Miranda and "the enemy is innocent until proven guilty in a civilian court of law" nonsense - putting her way out from the Lefties and Progressive Jews of the ACLU and other Fronts.

Still a liberal, but an apparant moderate liberal giving a good impression she will not legislate from the bench, is not under foreign influences.

Very intelligent, witty, and articulate woman - about as good as Republicans will get from the Socialist in the Oval Office. Very confirmable, suspect she will get lots of Republican votes.

Hopefully the next selection will be done, though, with an eye to better balance the court with religious and geographical factors in mind.

Old Dad said...


I guess I'm somewhat of a berry bigot. Down home, blackberries are pulpy but far from tasteless (I lied), I just like black raspberries a lot better.

I think you may be right about regional differences. Raspberries like a bit more sun than shade, and they like moisture. A typical Indiana summer, not too hot but humid, is perfect for them. They burn up easy when it gets too dry or hot.

MadisonMan said...

Oh, and aren't "black raspberries" called just blackberries?

No. Blackberries are a fruit that can be sold in grocery stores. They're not semi-circular and hollow like raspberries. I have never ever seen Blackcaps, or black raspberries (the eastern US variety) in a store. Black Raspberries are smaller than Raspberries, typically, a little bit seedier, and absolutely intoxicatingly delicious!

There is also a patch of golden raspberries on the bike path east of Glenway. Yum.

Hagar said...

Old Dad,

Where I hail from what would translate as "black berries" is something else entirely, and indeed grow on trees, not bushes. However, I googled, and as a far as I can see, blackberries and black raspberries look similar, but are different species and grow on very different looking bushes.

Hagar said...


My point was not about better or worse, and certainly not about whether there is a written constitution or not, but rather about coming from very different legal traditions, even if often coming to the same practical conclusion for the individual case.

AlphaLiberal said...

How long are people going to blame Bush for things that Bush did?

Kirby Olson said...

I think we assume that this nomination can't be stopped, and it's annoying to look at a train wreck that can't be stopped.

She won't be any worse than any other crypto-Marxist.

SteveR said...

This is easy for me. I blame Ted Kennedy from turning these hearings into a joke and providing cover for the other idiots to follow suit.

Ted Kennedy judging the worthiness of a nomineee for SCOTUS, that makes no damn sense.

Eric said...

If they were actually asking questions it would be something. I think the reason they don't ask followup questions is they're just reading prepared statements from the staff. I'll bet half the time they're wondering what's for lunch or whether or not they should fly home Thursday or Friday.

Eric said...

This is my view as well, tg. It also pleases me that there is a whole other group out there...on the fringes of the far left...who may be EVEN more concerned about Kagen's "blank slate" than any of us. They know Obama knows what we want to know, but they can't even trust their own guy to make an appropriate ideological choice.

Who can blame them? Republicans are at the nadir of the power cycle. If the Democrats can't get an avowed progressive on the court now, with 60 votes in the Senate (depending on how the Byrd seat plays out) and a huge majority in the House, it's probably impossible.

Fred4Pres said...

Did they really go into Twilight with Elena Kagan? And people call the current GOP leadership lame!

Well given today was completely wasted, here is a palet cleanser:

Here is Andrew Breitbart beating Andrew Sullivan like a baby harp seal.

c3 said...

How long are people going to blame Bush for things that Bush did?

Are they still together and performing?

Cedarford said...

Hagar - "My agrgument was..about coming from very different legal traditions"

And I pointed out that Kagan rejects the Jewish legal transnationalism as ideological inspiration that Ginsburg and Breyer were frequently guilty of - with Kennedy and O'Connor sometimes biting by citing the superiority of Zimbabwe's constitution or EU precendent applied to US domestic matters and jurisprudence.

I was worried Kagan was another transnationalist when she was initially reported on as lauding an activist, Lefty Israeli judge unbounded by any judicial restraint.
I am no longer worried.
About that, at least. She's still a liberal, but appears a lot more moderate than most and very commonsensical about supposed enemy rights and other issues.

Eric said...

How long are people going to blame Bush for things that Bush did?

Well, as long as they're going to blame him for everything, they might as well blame him for the stuff he did.

On the other hand, a plurality would rather have Bush back than keep the current guy.

Irene said...

That's a nice meadow. Watch out for ticks.

(Good advice for Kagan, too.)

rhhardin said...

Meadow with rolled hay was so pretty that I circled back to video it today, on the bike commute.

Christy said...

Am I alone in getting a Van Gogh vibe from the pic?

Count me in on the blackberry love. Blackberry cobbler, blackberry jelly, blackberry jam, Tennessee blackberry jam cake....

Pastafarian said...

Sorry to be redundant, but the thread where I first deposited this comment appears to have died:

Did you catch this exchange between Sen. Hatch and Kagan? It's about the memo she wrote while part of the Clinton administration, in which she altered the findings of a commission of medical experts on the necessity of partial birth abortion:

“Did you write that memo?” Hatch asked.

“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”

“Did you write that memo?”

“I’m sorry — the memo which is?”

“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”

“Yes, well, I’ve seen the document — ”

“But did you write it?”

“The document is certainly in my handwriting.”

Jesus Christ. She won't admit that she wrote it; they fuck around like this for ten minutes, and she finally relents with "well, it's in my handwriting".

And we're going to appoint this Clintonesque lying weasel to a lifetime position making decisions that will impact the freedom of our grandchildren.

I have nothing but contempt for this process, these people, and this profession that you call "law".

ken in sc said...

The black berries that grow on trees sound like mulberries. I met a girl who was new to Texas who said she had a raspberry tree in her back yard. It was a mulberry tree. I think she was from Pennsylvania. I have not seen any mention of dewberries. They taste like wild black berries but are juicer and grow on prickly vines instead of canes—at least in Alabama and Mississippi they do. They make great pies. Someone tell me more about maronberries, please.

Old Dad said...

ken in sc,

I was interested in marionberries, too. I guess they're an Oregon type of black raspberry.

MamaM said...

The wild black raspberry bushes growing on our berm in MI arrived courtesy of the birds.

They produce 3-4 foot canes and yield clusters of tiny sweet black berries in the traditional raspberry shape, measuring only a 1/4 to 1/2 inch in diameter. These berries stain fingers immediately upon picking and don't hold up well in captivity, but are fun to pull off the bush and eat. They look like tiny jewels and taste like summer sunshine.

Dust Bunny Queen said...

Someone tell me more about maronberries, please.

wiki link. for the pedigree


Sweeter than wild blackberries but with a nice tang. Juicy and with less seeds per berry flesh. Wonderful in pies and cobblers because of their flesh to seed ratio. Not that special in jam, IMO because you can make jam out of wild blackberries just as well with some filtering of the seeds. The marionberries are too good to make jam. Freeze or gobble down fresh.

Somewhat fickle producers outside of the mild Oregon valleys. We have quite a few years in my area where they don't produce because it is either too hot or too cold at inconvenient times for setting fruit. But when they do..yum

miller said...

Sorry, but red and black huckleberries are far more interesting for eating than any old blackberry or raspberry.

I have a few downed cedars and hemlocks on my property, and the huckleberries are lined up in a row on top of the logs. Easy picking and no weeds.

I hate the Himalayan blackberries, and wish the guy who brought them over was forced to clean out blackberry overgrowth in Purgatory.

LaurenceJarvik said...

Why not buy a transcript from FEDERAL NEWS SERVICE to post on your blog?


MamaM said...

Miller...I wonder if the Himalayan stuff is what we've got growing. The web site calls it "deliciously invasive". I pulled out tons of it during spring weeding and the patch I left standing is still huge and full. I enjoy the wild berries but don't like the undergrowth and weeds it tends to harbor.

I would like to assign the guy who brought it over the alternate detail of clearing out the poison ivy too. But that might move him from Purgatory to Perpetual Hell.

I recognize the Poison Ivy on sight but still managed to get tagged with two outbreaks from brushes with it this May and June. Thankfully, none on the face this year.

I've been thinking about the woman a few posts back who turned a small woodland cabin into a Victorian retreat by carrying her white furnishings across a quiet stream/creek using stepping stones.

In addition to the black raspberry canes and poison ivy lurking in the dense foliage that lines the always damp and sandy banks of our creek, I've found that habitat host to leeches, a snapping turtle, snakes, and clouds of giant mosquitoes.

Attempts to turn portions of this area into a lovely place of retreat usually include sweating, swatting, itching, and snagging, along with insect and animal surprises and gobs of clay, sand and mud on shoes and gloves.

No white furnishings for my creek house, but a citronella candle for sure, along with a pruners, gloves, bucket, broom and a handful of staining miniature black raspberries for a back to nature snack.