That’s the title of my new Confirmation Tales post, subtitled “Even an excellent teacher can do only so much with a dim pupil.” An excerpt:

In 1993, Senate Judiciary Committee chairman Joe Biden hired [Elena] Kagan as his special counsel for the Ginsburg confirmation process. 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.

As you will see, Biden continued to make things worse. Seated next to Kagan, I saw a look of dread cross her face as her dim pupil stumbled from one confusion to the next.

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