“Supreme Court Nomination Hearings Are Funny Things”

Enough already about Elena Kagan's sense of humor

Almost a year ago to the day, my colleague Greg Marx wrote on the peculiar relationship reporters have with Supreme Court nomination hearings. He summed up the blanket coverage/muted interest dichotomy as such:

When it comes to media coverage, Supreme Court nomination hearings are funny things. The nation’s political press corps, almost without exception, seems to believe that these proceedings are predictable, staged political theater. (The text accompanying a video on the front page of NYTimes.com today, for example, is “The Confirmation Hearing Routine: A Fairly Standard Script.”) With respect to the nomination of Sonia Sotomayor, the outcome of the hearings, which began this morning, appears to be not at all in doubt: “Unless you have a complete meltdown, you’re going to get confirmed,” Senator Lindsey Graham (R-S.C.) told the nominee this morning.

At the same time, the media seems to believe that the hearings warrant breathless, non-stop coverage. The proceedings are being carried live on the cable news networks and live-blogged by, among other outlets, The New York Times, The Washington Post, Politico, The Atlantic, and National Journal. (NPR, on the other hand, has cut back on its coverage compared to prior hearings and will not provide an “anchored feed” to its member stations, though they can still choose to run unanchored audio.) The quantity of journalistic talent and resources accorded to an event that no one expects to be interesting is staggering.

Déjà vu time.

The confirmation hearing for latest Obama court appointee Elena Kagan—where Graham welcomed Kagan to proceedings by saying, “I hope you somewhat enjoy it. I think you will,”—mostly provided the same “fairly standard script,” both in the chamber and from reporters.

So when reporters sat down to compose their post-hearing post-mortems last week, they had to come up with an interesting, if not political-landscape-rocking, angle, to hook audiences, along with the recap of debates about Thurgood Marshall and Don’t Ask Don’t Tell. Most landed on the same one: Elena Kagan is funny.

Post staffer Ann Gerhart, following on from her excellent profile of Kagan with co-writer Philip Rucker in June, was entranced. Her piece, “At Hearings, Elena Kagan charmed her critics – and seemed to enjoy herself,” is a snappy account of a kind of clean-mouthed comedienne winning over the room, line-by-line. The lede befits a subject more Joan Rivers than John Roberts:

By the end of 17 hours of senatorial grilling, lecturing and badgering, Supreme Court nominee Elena Kagan had revealed at least one passion: She loves this stuff.

Put the woman in front of some stern interrogators who make her explain a dozen times why Harvard Law School doesn’t require constitutional law in the very first year, and she comes alive.

Recapping the second day of proceedings, the AP ran with a piece headed “On Day 2, Kagan deploys humor and the artful dodge.” Nancy Benac reported that Kagan even managed to get Specter chuckling.

Kagan’s humor got a thumbs-up from Sen. Arlen Specter, D-Pa., one of her most cantankerous questioners.

Talking about television coverage of the courts, Kagan told Specter: “It means I’d have to get my hair done more often.”

That left him momentarily speechless.

Then he offered: “Let me commend you on that last comment, and I say that seriously. You have shown a really admirable sense of humor, and I think that is really important.”

In a brief summary of the hearings in last Saturday’s paper, the Times too highlighted the Specter exchange. Under the subhead “Cracking wise,” the piece also reviewed the now-infamous to-and-fro between Kagan and Graham.

Asked by Lindsey Graham, Republican of South Carolina, where she had been this past Christmas — a precursor to questioning about the day’s airline bombing plot — she got a laugh by answering, “Like all Jews, I was probably in a Chinese restaurant.”

And on Weekend Edition Sunday, NPR recapped Kagan’s comedy highlights reel.

Reading through it all, I’m still not sure if I’d want Elena Kagan deciding my reproductive rights, such as they are. But I’d happily meet her for iced mochas at my local Starbucks. Or share an egg roll with her next Christmas.

Reporting Kagan’s sense of humor is not bad reporting. It’s solid observation—and, indeed, where reporters wrote of how it played in to currying favor with the Committee, it is rather important. It is an understandable focus too, considering Kagan remains something of a blank slate to readers and viewers. With a few jokes, the woman some have labeled a cipher—the bland and unrevealing answers on matters of substance, the frustratingly short paper trail—is suddenly a living, breathing, laughing, jesting human being.

But the almost excessive interest in Kagan’s sense of humor—every joke recorded, ledes detailing her witty exchanges—not just in blogs but in mainstream outlets, might be indicative of something Marx was getting at with the Sotomayor piece. There just isn’t a lot to cover at these hearings anymore.

We might be devoting too many minutes, pages, and people to a spectacle so predictable that a moment’s surprise levity is the most interesting thing to report. As Marx writes, resources could be better directed at covering stories others are ignoring. In July of last year, he suggested the secret C.I.A. program to kill al Qaeda leaders being reported on at the time, or the then-latest on health care reform. Today, reporters moved from their beats to keep watch of the hearings could be further unpacking the employment crisis, or at least explaining to us why it’s so damn hot outside, leaving detailed Kagan blow-by-blows to a (more) select few.

For them, the predictability of the proceedings should be a challenge to mine for fresher angles. If we’re going to cover these things, let’s do a good job—if not for the sake of readers and viewers tiring of the Thurgood Marshall-Harvard Law School-Jewish Christmas dance, then certainly to differentiate your reports from those “Kagan-is-a-funny-shoo-in” pieces clogging Google News search results on the nominee.

Some have certainly taken different approaches. Reporters analyzing the implications of Kagan’s having to sit out several cases in her first year on the bench (due to her tenure as Solicitor General) are forward-looking and fresh—as early as late May, NPR offered solid work on this. Elsewhere, some keen local outlets are focusing on how their own senators are faring in the hearings—as in this piece on notably aggressive interlocutor Arlen Specter in the Philadelphia Inquirer, or the Boston Globe’s look at how Scott Brown’s vote might shape his political personality. But there is more mining to do, and in some cases, mining that can be left undone.

Perhaps, when Kagan is confirmed, and we look back at yet another nomination-by-numbers, we will redress the balance Marx spoke of between blanket coverage and zero interest. From Marx last year:

We’re hearing a lot these days about how newsrooms have to get by with fewer resources than they’re accustomed to. Learning to effectively deploy their remaining resources is the first step toward dealing with that fact.

Marx was right: Supreme Court nominations are, or at least, can be, funny things. And they’re important. Justices need to be vetted fully and thoroughly, if not so theatrically, and we need to read and see this process before they disappear out of public view and onto their bench.

But when we know a hearing’s outcome ahead of time, and the script rattles by unchanged, the outlet that finds the fresher angle—or devotes its time to a fresher story—will be the one that gets the last laugh.

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Joel Meares is a former CJR assistant editor.