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Kagan hearings a short course in Legalese 101

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.
Elena Kagan
Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, before the Senate Judiciary Committee hearing on her nomination.Susan Walsh / AP
/ Source: The Associated Press

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.