Image: Elena Kagan
Susan Walsh  /  AP
Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, before the Senate Judiciary Committee hearing on her nomination.
updated 6/29/2010 11:01:19 AM ET 2010-06-29T15:01:19

As Supreme Court nominee Elena Kagan undergoes questioning before senators this week, some of the hearing may sound like it's in a foreign language. But don't adjust the TV or look for subtitles.

Kagan and her questioners are speaking legalese. Of her 19 interrogators on the Senate Judiciary Committee, all but six went to law school, and they speak a little differently from the average American. It can send the uninitiated running for a dictionary.

"I'm just guessing, but I would say that people can follow a third of what's going on," said Stephen Wermiel, a professor at American University's law school who teaches about the Supreme Court.

First-time hearing listeners would do well to have a copy of U.S. Constitution handy. Recent nominees have found themselves discussing the Second, Fifth and 14th Amendments, among others. For those who haven't taken civics recently, that's the right to bear arms; the protection against self-incrimination and ensuring a citizen's property won't be taken by the government without compensation, and the guarantee of equal protection under the law.

Listeners should also expect to hear some Latin, a language lawyers love. Speaking at her confirmation hearing last year, Justice Sonia Sotomayor was at ease using terms "per curiam," "en banc" and "sui generis." In English, the first term is an opinion written "by the court as a whole" instead of a single justice; the second means all a court's judges hearing a case together; and the third is a phrase that means "of its own kind."

For Kagan, like other judicial nominees, the Latin word of the day is "stare decisis." At Sotomayor's hearings, the phrase was used about as often as the phrase "wise Latina," two words Sotomayor took a beating over. Literally, stare decisis means "to stand by things decided." In practice, though, it is the term that lawyers and judges use when talking about when to accept a past case as settling an issue and when the court can change its mind.

For senators, both Democrat and Republican, stare decisis is a big deal. They want to know that as a justice Kagan will be committed to past court decisions and want assurances she won't overturn them. Expect to hear repeated questions using stare decisis synonyms, asking Kagan how she feels about "precedent" or "settled law."

Richard Davis, a professor of political science at Brigham Young University in Utah, says senators know their hearings are being watched by the general public, and they have gotten better about explaining the legal terms they are using. But sometimes, he said, they can't help slipping into lawyer-speak.

"To some extent this language helps them to convey that image that they're intelligent people too, that they have the street creds to question this person," said Davis, who wrote a book on the Supreme Court nomination process and how it might be improved.

Even seemingly simple English words can have new and different meanings at a confirmation hearing. Take Kagan's time as a Supreme Court law clerk for Justice Thurgood Marshall. Being a "clerk" may sound like a menial position, but that's deceptive.

Justices usually hire four clerks a year, recent top graduates of top law schools, and the clerk's work can be influential. Part of the job includes examining requests from lawyers who want the Supreme Court to hear their cases. When the court agrees to take a case it's called granting "cert," short for another Latin word, "certiorari." Kagan may get asked if as a justice she would participate in the "cert pool" — justices whose clerks divide the work of looking at the thousands of cases the court gets asked to hear each year.

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Video: Sen. Kaufman on day 2 of Kagan hearings

  1. Closed captioning of: Sen. Kaufman on day 2 of Kagan hearings

    >>> delaware democrat senator ted kaufman sits on both the judiciary coast and armed services committee .

    >> the only democrat who will get to question both petraeus and kagan, joins us now, the only republican who gets to do the same, south carolina 's lindsey graham . senator, thanks for being on.

    >> hey, chuck.

    >> i know you got to be very quick here.

    >> yeah.

    >> did you hear anything from elena kagan yesterday that is a concern to you?

    >> no. i really didn't. i think it is pretty much, her speech it is standard. you -- by this time and this process, they have picked over every possible thing you pick over, which is the right way to do it. so i would be -- the biggest surprise from me yesterday if i heard something from her that i hadn't heard before.

    >> senator kaufman , as you well know, elena kagan has been our solicitor general, litigating cases on behalf of the united states . she was in private practice. i misspoke yesterday, i wanted to say that but we heard your democratic colleague say that she has -- they have less whaefd sort of judge she will be than any nominee in recent memory and her judicial philosophy is almost invisible to us. that is really not a swipe at her experience, just the fact you can't look at a paper trail and really discern what she is b so how do you plan to get at that issue?

    >> oh, i think that -- i think we get at it just the way we should. when president clinton called me on her nomination, i thought it would be be good if we picked a nonjudge and the president did pick a nonjudge. the fact we don't have a judicial record, look at the court the way it is now, we have nine circuit court of appeals judges and i was involved in all their nominations working for then-senator biden . i think it is good we have somebody without a judicial record. we need brood representation on the court that really makes the decision. the technocrates that need to be at the circuit court below, the supreme court should be general. first off, i think it was good they picked somebody without a record. the only person that served a until you three branchs of government. she worked both in the clinton administration and worked with me and senator biden on the judiciary committee on the ruth bader ginsberg . plenty to look to see-to-see what they she's going to do and be about.

    >> senator, i want to move to the petraeus confirmation hearing now. do you believe somebody very close to vice president biden , i figure you're intimate on this knowledge, do you believe that you understand what the july 2011 time line is number one, and number two do you believe that the president needs to be clearer on what the july 2011 time line means?

    >> i would say no to both. i questioned general petraeus when he was up previously, just giving a report on what is going on in iraq, up under secretary flournoy. and i said to him specifically, general petraeus , it is clear that this december we are going to make a major decision where we are in iraq and afghanistan. absolutely. and we are clear then july of next year, we are going to draw down the troops and he said yes. i said the point is 'cause several senators have made it conditions on the ground, but conditions on the ground only apply to how many troops are going to draw down. i don't know how many times you can say it the president said it, the head of the joint chiefs said it mullins said, it, secretary clinton said it petraeus said it last week, i'm sure petraeus will say it again, i don't know how you can be any clearer about the fact that next july, make decision, draw down the troops, may be some troops, may be more troops ant conditions on the ground, the number of republican senators have raised, the condition on the ground determine whether we take out one troop or 10,000 troops.

    >> you believe one troop. you think at least one troop will come out in july?

    >> i believe something will come out. seeker the key thing, chuck, you know, i'm kind of old enough to have really been through the vietnam war and the one point i wanted to make is we are not going to put anymore troops in, that is the key decision, in my opinion. i got, in the foreign relations committee , questioning the head of the joint chiefs mullins and secretary clinton and secretary gates, i submitted to each one of them. we are absolutely clear on the first two points, december andup and now i want to make clear a third point, under no circumstance will we be introducing more troops and the answer is yes. the key thing is people say we could get in a vietnam situation, we could add more and more troops, they have all said we are not going to add more troops much i think key thing is we have to decide, we will know dish think we will know pretty much by december how things are going and what we should be doing.

    >> senator ted kaufman , we know you have to get it to that hearing room behind us. your staff is going to kill us if we keep you longer. thank you for your time.

    >> update him and viewers. right now, elena kagan asked about various recusals she is making. she has to recuse herself from 15 cases potentially that the government is going to be involved in with the supreme court , if she ends up being confirmed on the supreme court .


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