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Legal laughs: Kagan shows funny side

By Bill Mears, CNN Supreme Court Producer
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Lighter moments from the Kagan hearing
  • Confirmation hearing displays Elena Kagan's sense of humor
  • Nominee jokes that televising Supreme Court sessions would force her to get her hair done more often
  • Kagan and Sen. Lindsey Graham engage in humorous exchange

Watch gavel-to-gavel coverage of Elena Kagan's confirmation hearings live on CNN TV, and on the CNN app for the iPhone.

Washington (CNN) -- It has long been the dream of many a liberal advocate: to have an unabashedly outspoken, cleverly articulate justice who can take on the conservative majority and inspire young progressives for decades to come -- a "Scalia for the Left," as many have called it.

If confirmed, Elena Kagan may or may not turn out to be that intellectual counterweight to conservatives Justice Antonin Scalia or Chief Justice John Roberts. But Kagan displayed in her confirmation hearing Tuesday what those two men share -- a ready public wit and disarming sense of humor.

Time and again, the nominee sought to subtly charm lawmakers on the Senate Judiciary Committee, many of whom tried to press her for candor on a range of contentious issues such as gun rights, executive power and military recruiting on campus.

Kagan's funny asides during 10 hours of questioning appeared spontaneous, and colleagues say that is her style: someone who is serious about the law but who enjoys a good laugh, often at her expense.

Sen. Arlen Specter, D-Pennsylvania, quizzed Kagan on a favorite topic of his-- allowing cameras in the Supreme Court, which most justices oppose.

"It means I'd have to get my hair done more often, Sen. Specter," Kagan replied.

The senator paused and appeared not to immediately get the joke. But he quickly recovered.

"Let me commend you on that last comment and I say that seriously," he said to laughter in the room. "You have shown a real admirable sense of humor and I think that's really important. ... We are looking for somebody who could moderate the court, and a little humor would do a lot of good."

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When it comes to being funny, it helps to have a willing and ready partner. Kagan found that in the folksy, clever phrasing of Sen. Lindsey Graham, R-South Carolina, who asked her about her 1995 statements criticizing past Supreme Court confirmation hearings as a "vapid and hollow charade."

"Let's try to go back in time and say you're watching these hearings and you were critical of the way the Senate conducted these hearings," said Graham, drawing chuckles in the hearing room. "Are we improving or going backwards? And are you doing your part?"

"I think you've been exercising your constitutional responsibilities extremely well," Kagan said, smiling broadly and drawing out the word "extremely."

"So, it's all those other guys that suck, not us, right?" responded Graham to huge laughs.

On another occasion, Kagan was left giggling by an exchange between Sen. Chuck Grassley, R-Iowa, and committee chairman Sen. Patrick Leahy, D-Vermont.

Grassley had asked the nominee about a paper she wrote as a college student that took a critical look at how judges decide cases.

"Is it appropriate for judges to mold and steer the law?" Grassley asked.

"All I can say about that paper is that it is dangerous to write papers about the law before you've spent a day in law school," Kagan said. "I wrote that paper before I spent a day in law school. I was trying to think about whether to go to law school and I decided to write a paper about law in order to figure out whether I was interested in the subject... So I would just ask you to recognize that I didn't know a whole lot of law."

Her careful answer brought laughs, and Grassley joked it caught him by surprise.

"You know if I accept your answer, it is going to spoil a whole five minutes I had here," Grassley responded.

"Chuck, go ahead and accept it," Leahy cut in, to laughs.

"Let me enjoy it anyway, will you?" a smiling Grassley said.

Late in the day, conservative Sen. Tom Coburn, R-Oklahoma, said he would ask Kagan a "softball" question.

"Promise?" Kagan replied, looking skeptical at first, and then grinning softly.

The biggest laugh of the day came from another exchange between Kagan and Graham. The subject was the not so-funny topic of terrorism and the 2009 attempted Christmas day bombing of a Detroit-bound airliner.

"The Christmas day bomber, where were you at on Christmas day?" Graham asked.

"Sen. Graham, that is an undecided legal issue, which well, I suppose I should ask exactly what you mean by that," Kagan began. "I'm assuming that the question you mean is whether a person who was apprehended in the United States is ..."

Graham interrupted, saying, "No, I just asked you where you were at on Christmas."

Without hesitation, Kagan replied in perfect deadpan, "You know, like all Jews, I was probably in a Chinese restaurant," tossing her head and shrugging her shoulders in the process. Sen. Charles Schumer, D-New York, clapped his hands animatedly at the comment.

To be fair, the members of the court usually labeled liberal -- Justices Ruth Bader Ginsburg and Sonia Sotomayor, and the retired John Paul Stevens -- all display great legal minds but not much sharp-edged humor or the willingness to engage in spirited debate for which Kagan is known. Justice Stephen Breyer is equally smart and he too shares a sense of humor, but that tends to fall on the quirky, self-deprecating side.

On the conservative side, friends of Justice Clarence Thomas -- who almost never speaks at arguments -- note he has a great wit and a hearty laugh. Colleagues call him the funniest justice you never hear about.

If confirmed as expected, the 50-year-old Kagan could have years of humorous highlights ahead of her on the bench. With Roberts, Scalia, and Breyer, she could help make the traditionally sober court a little more light-hearted.

Schumer paid Kagan a high compliment Tuesday, noting Scalia gets the most laughs during high court oral arguments.

"If you get there, and I believe you will," Schumer said, "you're going to give him a run for his money."