Titled “Party at the DOJ,” the report features findings from a Government Accountability Office study heavily larded with bits from local newspaper stories, a mix apparently aimed at exciting the outrage centers of the American brain. “With our nation facing the heightened threats of domestic terrorism and unprecedented debt and financial challenges,” the report says, “taxpayers should be shocked to learn DOJ crime prevention grant programs are paying for parties and rollercoaster rides for children rather than focusing on investigating crimes, locating and prosecuting terrorists, and administering justice.” Coburn’s report hazards a guess that DOJ has spent $100 million over the past five years on frivolities at the expense of public safety and national solvency.

Coburn’s ire is directed primarily at DOJ’s Weed and Seed program, which hands out grants targeted at cleaning up high-crime neighborhoods. The funds go to police and prosecutors to weed out gangs, addicts, and thugs, and to private community groups to then seed the area with social services, from treatment programs to youth centers. Sometimes the seeding involves community activities like dances and block parties.

Coburn’s report, citing the GAO study, recommends DOJ should require weed and seed programs to keep better track of the money they receive. To inflate this important, if quotidian, point into an indictment against recreation events on the taxpayer dime, the report spikes facts with an ample dose of truthiness.

Let’s look at that $100 million figure. Sounds impressive, but how did the report arrive at that figure? By lumping the Weed and Seed’s relatively modest budget ($25 million) together with the entire budget the much larger Office of Juvenile Justice and Delinquency Program ($453 million), and then making a guess. “If the total amount spent on parties and other fun activities is only a small percentage of the $478 million combined Weed and Seed and OJJDP budgets, tens of millions of crime prevention dollars are being spent on parties and other recreational activities with little or no measurable impact whatsoever on crime every year,” the report says. “Over a five year period, this could amount to well over $100 million, yet it is impossible to know for sure.”

This $100 million guess was then repeated as an estimate – without reference to its less-than stringent methodology – in reports by CBS News, Andrew Breitbart’s Big Government site and the Washington Examiner. The Legal Times covered Coburn’s report on its blog, but did not mention the alleged $100 million figure. Being a journalistic enterprise in accuracy more than agitprop, it also tested some of the report’s claims.

One of the recreational events portrayed in Coburn’s report as a trivial waste was a luau thrown by East Chattanooga Weed and Seed. The program’s site director, Vivian Hixon, told the Legal Times the event, intended for children, was staffed by volunteers and paid for with private donations.

“This is not some luau party like he’s making it sound,” Hixson said. She added that Coburn’s office did not contact her before issuing its report. “I wish that we had been asked,” she said, “because I think that we could have cleared this up very easily.”

Told of the Chattanooga program’s response, Coburn spokesman John Hart wrote in an e-mail: “In many of these cases, it comes down to a question of whether the funds in question are fungible. Also, because DOJ does not track the funds, it is difficult to pin this down.”

The report also complains about the lack of examination into the effectiveness of recreational activities. But it’s not like Weed and Seed programs haven’t been studied. Research tends to concentrate on the forest, primarily how the weeding and seeding programs impact things like crime rates and perceptions of safety, rather than the trees, like the effect of a block party or carnival. Granted, there’s a concrete example of Weed and Seed funds being misused in Coburn’s home state of Oklahoma, but in the absence of data on recreation activities, the report simply assumes money spent on that (which it assumes is $100 million) is by definition a waste.

Coburn has earned a reputation as an anti-pork crusader and, as a member of the Judiciary Committee, DOJ programs fall under his purview. (He tried and failed to eliminate the funding for Weed and Seed back in early 2009.) I suppose his willingness to employ what Stephen Colbert would call “truth that comes from the gut” in this report is a sign of his enthusiasm for controlling government spending. It’s a shame he doesn’t have a seat on the appropriations committee, where he’d get a crack at a lot bigger fish than a program to improve high-crime neighborhoods.

But the rest of the week was a wet hot mess. Stories carrying the stench of partisan hackery and incompetence dominated, giving aid and comfort to those who would prefer a neutered press unworthy of the public’s trust.

The same day the Post began its investigative series, Andrew Breitbart posted an edited, misleading video of USDA official Shirley Sharrod to attack the NAACP, resulting in the Obama administration freaking out and firing Sharrod without proper due diligence. The New Republic’s Jon Chait argues that the Breitbart episode is an example of conservative pseudo-journalism, which is thinly disguised opposition research presented as real reporting. Chait’s argument is characteristically strong, but I tend to agree more with his label mate, Michelle Cottle, who plays the scold:

[W]hat I find disheartening about this Andrew Breitbart business isn’t what it says so much about conservative journalism as about the sorry state of journalism period. Not the way it’s practiced (or malpracticed) by any one group or individual, but how the very notion of journalism as a real profession, with even minimal standards of conduct and ethics, has evaporated.

…

More and more Americans consider journalism just another front in the bloodsport of partisan politics, where the ends justify damn near any means. Increasingly no one cares about (or recognizes) the difference between marshalling facts to make your argument and just completely making shit up.

Also this week, the Daily Caller ran a series of stories on the now-defunct Journolist, an email list-serve populated by about 400 journalists and academics hailing from the left side of the political spectrum. Tucker Carlson, the Caller’s editor-in-chief, argues the leaked Journolist emails show that the members are partisan political operatives, not journalists. Ezra Klein, the Washington Post blogger who created and curated the list-serve, fired back, saying the Caller’s Journolist “stories have misstated fact, misled readers, and omitted evidence that would contradict [Carlson’s] thesis.”

Klein maintains that the list-serve was a “wonkish, fun, political yelling match,” not some sort of media conspiracy. I don’t doubt Klein’s intention to create a space for freewheeling debate, and while I’m not privy to the Journolist archives, I’d be willing to bet 99 percent of the content would show it to be just that. Still, he and other contributors should have thought harder about the optics of a private discussion group of center-left and leftwing reporters in light of the longstanding allegation that the press has a liberal bias, especially considering the Politico’s skeptical report on the list from early 2009. Moreover, there are some instances, like a member reportedly using the list to beg for talking points for a TV appearance, which suggest something more afoot than just debate.

Finally this week, Los Angeles Times media critic James Rainey admitted that his paper failed in one of its core functions: To serve as a government watchdog. Earlier this month, the Times reported on the completely insane salaries that officials in Bell, a small city near LA, gave themselves. (The city managers’ salary, for example, went from $300,000 to nearly $800,000 over the course of five years.) But this was a story that should have been reported years ago and only came to light because Bell has taken over services for a nearby city that went bankrupt, as Gary Scott pointed out. Rainey says that, due to shrinking newsrooms at the Times and other area papers, “officials in places like Bell can blithely go about their business — racking up 12% annual pay raises, keeping a pal on the payroll in a make-work job — without anyone in the news business sniffing around for months, or even years, on end.”

In a way, it’s unfair to focus on these three items and treat “the media” as a cohesive entity. As lousy as this week has been for public confidence in the press, journalists still filed thousands upon thousands of quality stories reporting and analyzing events from all over the world. But the profession is vulnerable right now, as it goes through an era of contraction and transformation. These types of screw-ups and scandals are ammunition for those who seek to destroy the press’ credibility and invalidate the idea of intellectually honest journalism. Take Sarah Palin, who contemptuously spit on the press this week in an interview with the Daily Caller.

The lamestream media is no longer a cornerstone of democracy in America. They need help. They need to regain their credibility and some respect. There are some pretty sick puppies in the industry today. They really need help.

Palin is prosecuting a savvy, aggressive media strategy: Deligitimize the press; only talk to friendly outlets that share her conservative ideology; and communicate directly with her supporters – without the fact-checking, context-adding journalistic filter – via Twitter and Facebook. Others appear to be following the Palin blueprint. Sharron Angle, the Nevada’s GOP nominee for the Senate, walked away from a press conference Wednesday that campaign invited reporters to without taking a single question.

When it comes right down to it, just about any politician, Republican, Democrat, or otherwise, would prefer to operate without the interference of pesky reporters, with their pesky questions and pesky facts. (Let’s not forget it’s been an entire year since President Obama held his last prime-time press conference.) The rise of social media and the fractured, partisan media landscape make it easier and easier for them to avoid journalistic inquiry while still getting their messages out.

Journalism is a profession that relies on trust. In a recent Gallup poll measuring public confidence, newspapers ranked 10th out of 16 institutions, just above banks and below the criminal justice system. Television news ranked 12th. The press will undoubtedly survive this horrendous week. I’m not sure, though, how many more like it it can take.

More to the point, Priest and Arkin detail how the networks’ secrecy and redundancies caused authorities to miss red flags that could have prevented Nidal Malik Hasan from shooting up Fort Hood or Umar Farouk Abdulmutallab from ever getting on a plane last Christmas.

The Post’s series, and its companion Web site, shines a rare light on this classified world that’s essentially large and autonomous enough to be its own branch of government. What I found particularly jarring is how primitive human instincts have played a key role in growing an intelligence system seemingly to the point of dysfunction.

The first instinct, obviously, is fear. Nine days after the Sept. 11 terrorist attacks, Congress approved an additional $40 billion to boost homeland security and go after al-Qaeda. At $75 billion, the current intelligence budget is two-and-a-half times larger than before the Twin Towers went down, which Priest and Arkin point out does not include an additional range of military and domestic counterterrorism programs.

It’s altogether reasonable that the government would spend whatever was needed to keep us safe, or at least to make us feel safe, after 9/11. But it appears the human instinct to seek status also fed the intelligence networks’ unprecedented bloat. “Fear has caused everyone to have stuff,” a three-star general told the Post reporters. “Then comes, ‘If he has one, then I have to have one.’ It’s become a status symbol.” A man running a business building high-security workspaces (known as SCIFs) said there’s a “penis envy thing going on. You can’t be a big boy unless you’re a three-letter agency and you have a big SCIF.”

This sort of status seeking isn’t reserved for the big swinging dicks in the world of espionage, intelligence, and the military. It’s just part of how we’re wired. Take Prius owners, a population arguably as far as you could get from those occupying the highest rungs of Top Secret America. Studies have shown that, rather than fuel efficiency or lower emissions, more people bought the eco-friendly hybrid car because of the statement it made about themselves — a status symbol, if you will.

I expect the next part of Priest and Arkin’s series, covering the government’s reliance on contractors, will explore how a third human instinct – greed –has factored into the intelligence systems’ expansion. Considering how some sectors of the military-industrial complex treat war like a racket, it’s easy to imagine some of the 2,000 private contractors in the intelligence-industrial complex behaving that same way towards counter-terrorism and homeland security.

Almost by definition, Top Secret America’s mutatation into an unwieldy behemoth has gone on behind closed doors. But this secrecy seems to have prevented the type of oversight to assure the right reasons motivate the creation of expensive new programs and the expansion of others. I’d submit that following base instincts like fear, greed, and lust for status is not the smartest way to build the system that’s supposed to keep the country safe.

With the economy sputtering and the jobless rate stuck near 10 percent, political wizards like Charlie Cook are predicting huge Republican gains in the midterm elections, enough to possibly take back the House and close the gap in the Senate. Looking forward, major pieces of President Obama’s agenda, like comprehensive immigration reform and climate legislation that includes cap-and-trade, appear dead and buried.

Furthermore, House Democrats made it harder this week for their Senate colleagues to pass bills that face Republicans resistance next year (via Jon Chait):

Recognizing that Democrats would be reluctant to record “yes” votes for a budget that would augment the deficit, the House leadership opted to deem as passed a “budget enforcement resolution” instead, just before the July 4 recess. While the distinction between an enforcement resolution and a full budget is largely technical, there is one crucial difference: Under the enforcement resolution, Democrats can no longer use a parliamentary tactic known as budget reconciliation next year — a process Democrats had hoped might allow them to pass key pieces of legislation, such as a jobs bill, with 51 votes in the Senate, as opposed to the usual 60 needed to overcome a filibuster.

Under the arcane rules of the Senate, budget reconciliation can only be used if it was written into the budget rules passed the previous year. With no full budget, there can be no reconciliation. [emphasis added]

Let’s assume the economy continues to stumble along and the Democrats take a bath in the midterms, lose the House, and retain a two or three vote edge in the Senate. The attention then turns to the GOP. Congressional Republicans played defense when facing a huge disadvantage in seats held, but what would they do with their expanded power on Capitol Hill? What do they want to accomplish, and would they be willing to cut deals or would they continue to play defense in anticipation of the 2012 elections?

Los Angeles Times’ Doyle McManus reports “a quiet civil war is brewing over what, if anything,” the party should say about it’s priorities, in terms of crafting a unified message like 1994’s Contract With America. He was pessimistic about the GOP coming up with a specific agenda at all.

One option would be Rep. Paul Ryan’s “roadmap,” an ambitious set of proposals that would rework huge portions of the tax and entitlement systems. National Review’s Jonah Goldberg, who favors the plan, called it “a sweeping, bold, and humane assault on the welfare state and our debt crisis.” On the other hand, Paul Krugman listens to statements from GOP leadership and argues their concern over the deficit is a ruse, and instead they’ll fight for “budget-busting tax cuts” that will necessitate deep spending cuts – in otherwords, the good old “starve the beast” plan.

These don’t seem like palatable options to the White House or congressional Democrats when the 112th Congress meets next year. I doubt Obama wants to the president who privatized Social Security or eliminated all capital gains and corporate income taxes, and he’s not a supply-sider who thinks tax cuts will automatically and inevitably spur economic growth.

Nevertheless, political scientist Jonathan Bernstien is correct when he points out the obvious — it’s too early to tell. Perhaps the GOP, Democratic lawmakers, and the president will learn to play nice and cut deals on small-bore, centrist legislation. Yet between intense ideological polarization in Washington, a close split in the number of seats between parties in Congress, a vocal activist base on the right calling for radical steps like the abolition of the IRS, huge and controversial issues like immigration that need tackling, Senate Democrats’ inability to use reconciliation to foil filibusters, and the looming 2012 presidential election, what you’ve got is all the makings for gridlock.

Keohane suggests this could be a function of how we’re wired. We seek consistency in how we interpret information and use mental shortcuts deal with the torrent of new information. These shortcuts also help us dodge the discomfort – known as cognitive dissonance – that’s created when we find facts inconsistent with our opinions.

That neurological explanation takes on added significance in light of the growing number of people who get their political news online. In his book “The Shallows: What the Internet Is Doing to Our Brains,” Nicholas Carr argues that the Web is literally rewiring our brains, boosting our ability to scan information and make quick decisions, at the expense of our capacity for deep, contemplative thought. Carr bases his theory partly on history, which illustrates how different types of information technology have impacted thinking, and partly on the latest scientific research, which shows that the brain adapts at a neurological level to new stimuli and experiences.

If you accept for a moment the theories presented by Keohane and Carr, then you can see how they would work in concert with one another. Together, they paint an unflattering picture of an ADD nation filled with people thoroughly convinced of the righteousness of their views, logging on and hungrily hunting for morsels of self-confirming information without much critical thought.

That may help explain the results of a Pew study showing an increase in the percentage of people who usually seek out political information from sites that share their point of view, from about a fifth of respondents in 2004 to a third in 2008. Those aged 18-24 – whose brains have arguably been the most rewired by the Internet – showed the greatest jump, from 22 to 43 percent. Research into the habits of blog readers (presumably heavy internet users, I’d add) suggests a similar attraction to like-minded sources. Political scientist Henry Farrell explains the results of one study he was involved with:

Left wingers read left wing blogs, right wingers read right wing blogs, and very few people read both left wing and right wing blogs. Those few people who read both left wing and right wing blogs are considerably more likely to be left wing themselves; interpret this as you like. Furthermore, blog readers are politically very polarized. They tend to clump around either the ‘strong liberal’ or the ‘strong conservative’ pole; there aren’t many blog readers in the center.

A polarized electorate consisting of people susceptible to misinformation who also lack the willingness or ability to reconsider their opinions is hardly ideal for a democracy. But it’s not the end of the world, either. “The reason the system functions is that democratic accountability doesn’t depend on voters knowing what they’re talking about,” Matt Yglesias wrote in response to Keohane’s essay. “Most people have strong partisan identities, and just vote for the same team. And swing voters’ views are driven overwhelmingly by economic performance.” Yglesias’ take sounds cynical, reductive, and accurate.

Nevertheless, I think it’s important to remember we’re not robots. Just because studies show certain behaviors in the aggregate doesn’t mean individuals are powerless against those trends. Indeed, being aware that we tend to process information in certain ways should help us take corrective steps (such as these 10 suggestions from William Saletan). Or we can continue to just believe what we want to believe and let the facts be damned. We all get to choose.

With that in mind, Ross Douthat’s recent column calling for a “conservative class war” qualifies as bold. In it, he urges the right to recognize that the worst kind of wealth distribution isn’t from the haves to the have-nots, but rather “from savers to speculators, from outsiders to insiders, and from the industrious middle class to the reckless, unproductive rich.”

The federal government perverts the market and incentivizes irresponsibility with that type of wealth redistribution, Douthat argues. He points to a Washington Examiner piece critiquing President Obama’s National Export Initiative, which appears to be nothing more than straight corporate welfare channeling taxpayer dollars to the benefit of certain American businesses. Douthat writes:

In case after case, Washington’s web of subsidies and tax breaks effectively takes money from the middle class and hands it out to speculators and have-mores. We subsidize drug companies, oil companies, agribusinesses disguised as “family farms” and “clean energy” firms that aren’t energy-efficient at all. We give tax breaks to immensely profitable corporations that don’t need the money and boondoggles that wouldn’t exist without government favoritism.

I appreciate Douthat’s effort to frame the opposition to government payola as a conservative cause, yet it seems like the type of fight that folks of all ideological stripes could get behind. In fact, the critique against Washington’s giveaways of big business has long come from the political left.

Back in 1996, for example, Noam Chomsky argued government largesse rendered the notion of a free market little more than a fantasy.

For those who are interested in the real world, a look at the actual history suggests some adjustment — a modification of free market theory, to what we might call “really existing free market theory.” That is, the one that’s actually applied, not talked about. And the principle of really existing free market theory is: free markets are fine for you, but not for me. That’s, again, near a universal. So you — whoever you may be — you have to learn responsibility, and be subjected to market discipline, it’s good for your character, it’s tough love, and so on, and so forth. But me, I need the nanny state to protect me from market discipline, so that I’ll be able to rant and rave about the marvels of the free market, while I’m getting properly subsidized and defended by everyone else, through the nanny state. And also, this has to be risk-free. So I’m perfectly willing to make profits, but I don’t want to take risks. If anything goes wrong, you bail me out.

Similarly, Howard Zinn claimed the federal government was created to be a powerful sword and shield for the the interests of the elite class. “This country was founded on the idea of big government,” Zinn said. “The slave owners needed big government, the manufacturers needed big government, the bond holders needed big government, the expanders needed big government, they all wanted, desperately, to have big government, and the rich and elite have always wanted big government. … We’ve had a welfare state in this country for a very long time, but most of the welfare was given to powerful and rich corporations.”

Douthat, in his column, was careful to say the problem goes beyond just corporate welfare, to include programs doling out government cash to individuals who don’t need it. The mortgage-interest tax deduction is a “McMansion subsidy,” he argues, and glitches in the entitlement system mean it’s “effectively underwriting cruises and tee times” in addition to serving as a safety net to keep the elderly out of poverty.

I don’t have an informed opinion on the relative merits of means-testing entitlement benefits or tax deductions, but overall, the problem of too many government tax breaks and subsidies for the wealthy and well-connected seems to be an inevitable byproduct of a political system in which the wealthy and well-connected have too much influence. As the old saying goes, if you hear hoof beats, don’t think zebras, it’s probably just horses.

Consequently, conservative class warriors might win battles by blocking specific programs, but one way to win the war would be robust campaign finance reform that levels the playing field between special, wealthy interests and the rest of us.

Photo Credit: Photo by Flickr user david drexler used under a Creative Commons license

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Despite Michael Steele’s ignorant and off-message comments about the war in Afghanistan sparking a firestorm of criticism from GOP luminaries, it appears he’ll hold onto the chairmanship of the Republican National Committee. National Review’s Rich Lowry said that, barring Steele’s resignation, it’s unlikely he’ll go anywhere because of the laborious steps involved in removing him. Given Steele’s response to earlier calls for his ouster (“If you don’t want me in the job, fire me. But until then, shut up. Get with the program or get out of the way.”), all signs point to him sticking around until his term ends in January.

It’s easy to laugh Steele off as an incoherent buffoon and enjoy his tenure as an extended piece of absurdist performance art. His time atop the RNC has been as tragic as it has comic, though, especially if you’re among those who think the GOP desperately needs to modernize to appeal to 21st century voters and deal with 21st century problems.

Transport yourself to the days following the 2008 elections. The American voters had just delivered a stunning rejection of the Republican Party and, as David Brooks wrote in a Nov. 11, 2008 column, a civil war was brewing over the future of conservatism. On the one side stood the traditionalists, arguing the Republican Party must double down on its core principles, while reformers urged the party to adapt to the changing world and the changing electorate.

Enter Michael Steele. It may have taken six ballots, but the RNC selection of a black man over former Huckabee campaign manager Chip Saltsman – who distributed CDs containing the infamous Rush Limbaugh bit called “Barack the Magic Negro” – carried enormous symbolic weight. Perhaps more significantly, Steele came from a different place in the GOP than the party’s hard-right leadership, potentially reopening the door for the “New England Republican” bloc of fiscal conservatives/social moderates who could expand the party’s shrunken tent.

In his victory speech, Steele proclaimed it was “time for something completely different.” He said the Republican Party had an image problem, as Democrats had unfairly characterized it as exclusionary and insensitive. Steele cleaned house at the RNC soon after taking power, signaling the dawning of a new day.

But it became clear early on that Steele was all sizzle and no steak, a man lacking the imagination, managerial skills, intellectual heft, and testicular fortitude to lead the GOP through a time of transition. His plan to reach out to minority voters – his “off-the-hook” pr campaign – has consisted of not much more than awkwardly dropping hip-hop slang into interviews and speeches, what Ta-Nehisi Coates jokingly called an “unwarranted, unprovoked attack on Ebonics.” While Steele made news early by offering Louisiana Gov. Bobby Jindal some “slum love,” he also allowed key staff positions in the RNC languish unfilled.

A bellwether test for Steele in the reformer v. traditionalist fight came after he made the brave-yet-accurate observation that Limbaugh is an “entertainer” who’s act can be both “incendiary” and “ugly.” Steele, however, quickly folded like a deck chair and kissed Rush’s ring: “My intent was not to go after Rush — I have enormous respect for Rush Limbaugh,” Steele told Politico. “I was maybe a little bit inarticulate. … There was no attempt on my part to diminish his voice or his leadership.”

Steele’s comment a few weeks later calling abortion an “individual choice” that should be regulated at the state level represented his last significant attempt at challenging Republican orthodoxy. He was scolded for his remarks, which were soon forgotten, buried by a succession of verbal gaffes.

By January 2010, Steele officially abandoned the effort to change the GOP and embraced the traditionalist mantra during an interview with Sean Hannity:

HANNITY: There are those that are saying for the Republican Party to be successful, they’ve gotta quote be more modern.

STEELE: No, no! But that’s what’s gotten us into trouble, when we walked away from principle. Our platform is one of the best political documents that’s been written in the last 25 years. Honest Injun on that.

Granted, Steele’s tenure with the RNC hasn’t happened in a vacuum. The emergence of the Tea Party movement, the moribund economy, and the expected success of what Ed Kilgore dubbed the GOP’s “murder-suicide” strategy for the 2010 elections have changed the political atmosphere since Brooks identified the traditionalist-reformer civil war on the right.

That doesn’t change the fact that Michael Steele blew a real opportunity to be a transformational figure in the Republican Party. He’s shown resiliency in fending off repeated calls for his head, but on balance, chances are he’ll be remembered for being the political equivalent of clown shoes.

That may seem elementary, yet an exchange with Sen. Tom Coburn late in the day crystallized the necessity of her lesson. The Oklahoma Republican questioned the legitimacy of a judge identifying constitutional ambiguity. “But that’s a judgemental decision, correct?” Coburn began. “You’re going to make a judgement about whether original intent doesn’t apply or is unknowable, and what may seem to be unknowable to you may seem to be knowable to another judge, correct?”

“Senator Coburn,” Kagan replied, “I don’t disagree with you that judging requires judgment.”

Going into the hearings, I’d have bet that Kagan would follow Justice Sonia Sotomayor’s lead and pass over this sort of teachable moment in favor of assuring the Senate’s approval. If you recall, Sotomayor fell back on simplistic bromides in similar circumstances, thus reinforcing the conservative rhetoric that dominates the public’s understanding of a judge’s role.

Kagan, however, rose to the challenge by giving a coherent description of liberal judicial philosophy. She didn’t disparage originalism, the leading conservative theory, which basically says the Constitution has a permanent and knowable meaning that a judge reasonably and modestly applies to the case at hand. Sometimes the original meaning controls a case’s outcome, she conceded. Yet other times it does not. “Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court,” Kagan said. She described a pragmatic, non-ideological approach that’s constrained by statutes and precedent, such that rulings are always governed by “law all the way down.”

Nor did Kagan abandon the notion that empathy — a factor suggested by President Obama that’s since been widely derided — plays into a judge’s reasoning. Seeing the case through the eyes of the parties involved is not optional, it’s required. “But at the end of the day,” she emphasized, “what the judge does is to apply the law.”

It’s fair to say Kagan’s description of her judicial philosophy was a solid response to the bipartisan call for real, substantive answers. That’s not to say she didn’t do her share of dipping and dodging, arguably violating standards set out in her much-ballyhooed law review article that bemoaned the vapidity of confirmation hearings. She also refused to play ball with Democrats who sought to portray the Court’s conservative justices as corporation-worshipping extremists, particularly during her combative exchanges with Sens. Russ Feingold and Arlen Specter, with the latter growing increasingly crotchety as he tried, and failed, to pin Kagan down on a specific critique.

Nevertheless, she did Democrats a favor by articulating a salable, reasonable explanation of how liberal judges view the law, an explanation resistant to charges that it’s just a pretext for judicial activism. Given that Obama has nearly 100 empty seats on the federal bench left to fill, Kagan’s description of judging by  “law all the way down” could be used by nominees who will shape the future of the courts for years to come. Moreover, she did so without putting her own nomination in peril.

To be fair, Coburn didn’t single out Roberts during his impassioned speech urging Kagan to be “absolutely honest” and “set a new standard” in answering the senators’ questions. He did, however, deploy a blanket condemnation of the performances by the last three Supreme Court nominees (Roberts, Samuel Alito, and Sonia Sotomayor). Their testimony clearly was not “predictive” of their decisions, Coburn said. “And that’s schizophrenic,” he added. “Why should we have this dance if we’re not going to find out real answers about real issues about what you really believe?”

This is consistent with Toobin’s observation that Roberts’ record belies confirmation promises of humble moderation and instead reflects an unadvertised hard-line conservatism. In other words, what Roberts said during his hearings wasn’t predictive of his subsequent decisions on the Court.

Coburn was not alone in his call for candor. Republicans and Democrats alike referenced Kagan’s 1995 critique of the confirmation Kabuki when requesting substantive answers. While Coburn was the most earnest,  Wisconsin Democrat Sen. Herb Kohl was the most direct: “Your judicial philosophy is almost invisible to us. We don’t have a right to know in advance how you will decide cases, but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court.”

Will Kagan set a new standard for honesty and forthrightness? Her opening statement, peppered with pabulum about judicial restraint and the rule of law, wasn’t very promising. She can hardly be blamed for that, though, as it’s simply standard operating procedure for judicial nominees. To wit:

Roberts in 2005: If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

Kagan in 2010: I will make no pledges this week other than this one — that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.

Tuesday’s questioning will invite Kagan to offer more than vague generalities. We’ll soon see if she accepts the invitation.

It’s true that modern confirmation hearings have long featured senatorial pontifications leavened with lawyerly dissemination. Contrary to their popular image as a valueless farce, however, they also “often address real substance, illuminate the spirit of their times and change with shifts in partisan alignments and the demographic characteristics of nominees,” according to Adam Liptak’s reporting of a new study that examined 70 years worth of confirmation questioning. Moreover, Liptak points to a second study that found most nominees answering roughly 60 to 70 percent of questions in a forthright manner – not exactly ideal, but a higher level of candor than one might think.

It would be silly to expect Kagan to turn her confirmation hearings into a full-blown constitutional seminar, a la Robert Bork in 1987. I agree with constitutional scholar Sonja West that Kagan will likely fall in line with her predecessors and pledge allegiance to robotically applying the law to the facts of a case. Also like West, I think the best thing she could do would be to abandon that hoary judge-as-machine narrative – which is oversimplified to the point of being false – and explain what the job really entails.

[Judges] go to work, pulling the tools from their bags and trying to figure out what they can about the meaning of the constitutional values at stake and how to prioritize them when they conflict. This is not the same as a rogue justice just making up the law, but it can and does result in different outcomes depending on the justice’s technique, constitutional values, and the facts of the case. This is why we require them to explain their thought processes to us in writing, when they produce opinions. When the explanation makes sense, the decision is publicly accepted and followed by future courts. When the logic is weak, there is public skepticism and the opinion is susceptible to being overturned in the future.

Senators from both sides of the aisle will give Kagan the chance to expound. Republicans are expected to go after her for her inexperience on the bench and try to cast her as a liberal activist. Democrats, as I’ve written before, will use the hearings as a venue to critique corporate-friendly rulings from the Court’s conservative majority. Kagan will obviously be very, very cautious about how she answers, but she need not turn down the opportunity to push back on the childish idea that confirmation to the Supreme Court requires her to transform into a Judgebot 5000.