FF LiveBlogs Kagan's SCOTUS Hearings
UPDATED: On day one of Elena Kagan's confirmation hearings, Democrats railed against what they called the Roberts Court's "conservative judicial activism".
Kagan was exceedingly boring, but she did do two things subtly. First, she attempted to recast her time in the Clinton Administration as an education about the democratic process and how it should be respected. Kagan concluded a long conversation about the greatness of the Supreme Court by observing how she has learned about the need for the Court to be a “moderate” institution. This was a clear nod to the observations of many Democratic senators criticizing what they termed “conservative judicial activism” and suggests that Kagan may agree with that critique. Her message to the Democrats was clear: I will help reign it in.
Second, Kagan attempted to turn the GOP critique that she lacks judicial experience and has too much political experience on its head. By trumpeting her claim that she understands the democratic process and respects it she was able to counter the Republicans before they were even able to press the issue in their questions. By claiming to “revere” the Democratic process, Kagan is really simply claiming that she won't be an “activist.”
All in all, this wasn't a very revealing day. Maybe more comes out in the rest of the hearings, but for now: no bombshells.
Posted at 4:40pm
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Sen. Ted Kaufman: So much like every other Democrat that I forgot he was even talking. He does not like conservative judicial activists.
Sen. Al Franken: Like his Democratic colleagues, Senator Franken launches into a civics lesson on the evils of the Roberts court, and while I respect his office, pardon me if I do not wish to hear him say what everyone else has just said before him.
Good time to sum up what we have heard so far before (hopefully) someone says something more interesting.
From the Republican senators, Kagan’s views on the military came up less often than expected. Republicans almost to a man have criticized Kagan's lack of judicial experience and her political connections to the Obama and Clinton administrations. The argument, it appears, will boil down to painting Kagan as inexperienced and too inclined to rule with liberals (read “activists”) for Republicans to vote for her confirmation. The one vote that seems legitimately in play is Graham. Besides that, most of the Republicans seem beyond convincing.
From the Democrats, as expected, there was a great deal of criticism for the ruling in Citizens United and much rhetoric about the Supreme Court being in the pocket of corporate America. The Citizens United decision was mentioned more than any other case by the Democrats and was used as an example of what they continually described as the Roberts Court’s “conservative activism.”
One thing is interesting: no mention, on either side, of Elena Kagan’s Goldman Sachs connection.
Posted at 3:51pm
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Amy Klobuchar: Nothing new here. She loves Elena Kagan.
Posted at 3:12pm
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Sen. Sheldon Whitehouse: “the strike zone for corporations gets better very day.” The Democrats are all following the same theme: The current Supreme Court is in the pocket of corporations.
Posted at 3:10pm
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Patrick Leahy has mercy on me: 10 minute recess.
Posted at 2:45pm
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Sen. Cardin: Dislikes 5-4 decisions.
Fears the Court has become an ally of corporate special interests. Also rails against the ruling in Citizens United. Cardin begins to list every recent case that the Court has decided 5-4 in favor of a corporation and urges Americans to pay closer attention to how the Court is legislating.
Posted at 2:40pm
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Tom Coburn's remarks are short and sweet.
Coburn: Confirmation hearings don't tell us much about what kind of justice an appointee will be once they are on the bench. He asks Kagan to actually answer questions for a change. Coburn clearly wants more information than any nominee has ever been willing to give and hopes Kagan will change that trend.
Posted at 2:40pm
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Senator Durbin takes aim at conservatives who have been critical of judicial activism. Durban says he has “two words for them: Citizens United”.
Conservatives had also earlier criticized Elena Kagan’s praise of Justice Thurgood Marshall. Durbin comes to Marshall’s defense in his comments, discussing the former justice’s work advancing civil rights litigation and as a prosecutor.
Posted at 2:35pm
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John Cornyn's got some legal game; lets see if it shows. Cornyn served on the Texas Supreme Court from 1991-1997 and as a District Court Judge from 1985-1991.
Cornyn brings up Graham vs. Florida AND brings up today's decision in McDonald v. Chicago.
His question: “Whether the nominee believes in the traditionalist role or the activist vision?” Cornyn rips Sotomayor for her “confirmation conversion” to the traditional vision of the constitution, and for returning to her “activist” roots once confirmed.
Cornyn lays out clear criteria on which he judges nominees, and it is pretty clear that Elena Kagan isn't going to meet his mark.
Posted at 2:25 pm
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Sen. Chuck Schumer’s comments present a long indictment of the Roberts Court.
Speaking of his expectations for Kagan, Schumer argues that the Court needs need a justice who can build moderate majorities.
Schumer claims that in the Court’s rulings, special interests are winning out over regular citizens and accuses the Roberts court of practicing “judicial activism”
He focuses much of his criticism on the court’s ruling in Citizens United as a step backward toward Lochner–era conservative activism.
In his comments, Schumer has been the senator most critical (by far) of the Roberts Court. He closes by praising Kagan as an “antidote” to the "lack of practical, real world understanding” shown by the current Court.
Posted at 2:09pm
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Senator Jon Kyl remarks: “perhaps the president wants judges that will ignore the serious constitutional questions that have been raised by his legislation.”
He reminds his colleagues that part of our task will be to figure out whether Kagan shares the president's “results oriented” attitude towards judging. He fears that she may be precisely the “results oriented justice that President Obama is looking for.”
Keeping up with the GOP theme of questioning her experience outside of academia, Kyl points out that Kagan is lacking in the “actual practice of law.”
Kyl also brings up Kagan's past involvement in a challenge to laws targeting illegal immigrants, a hot button issue in his home state of Arizona.
Kyl's comments fit into a clear GOP narrative: Kagan's experience is lacking and Kagan is very political.
Posted at 2:04pm
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Grassley stresses the need for justices “adhering to the law and not public opinion.” He adds that he would “Confirm a nominee who won't come with a results-oriented philosophy or who will impose their own preferences from the bench.”
Grassley adds: “Your relatively thin record clearly shows you have been a political lawyer.” Bangs away at Kagan's attachment to a number of politically charged issues within the Clinton administration.
Leahy accidentally says that Kagan “clearly measured up” to President Obama' : “political” errr...personal standard of being empathetic.
Pretty standard. Again, Grassley's major objection to Kagan is her lack of experience.
Posted at 1:32pm
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Senator Feinstein also starts with a bit on Senator Byrd. Says she believes Kagan is “eminently confirmable” and “smart, reasonable, highly respected, principled.” Fighting words for the Supreme Court. Feinstein finds the fact that Kagan has never been a judge to be “refreshing.”
Feinstein also takes aim at the Court's McDonald v. Chicago decision (handed down earlier today, striking down Chicago's handgun ban) and the D.C. v. Heller ruling. Senator Feinstein says that those decisions are “shocking as a former mayor.” and rails against the proliferation of guns. The Supreme Court “has thrown out seven decades of precedent to exacerbate this situation.” Also quotes Kagan's law review article on confirmation..
Feinstein concludes regarding Kagan that there is “no impediment to confirmation at this point.”
Posted at 1:17pm
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Sessions is finished. Now Democratic Senator Kohl. Sessions says her experience makes her unfit. Kohl sees the opposite and praises her real life work: “you come to us not from the legal monasteries...”
Seems to imply that Kagan isn't part of the legal establishment (surprising since Kagan was Dean of Harvard Law School).
Kohl does acknowledge one of Kagan’s problems: that her “judicial philosophy is almost invisible to us.” He says he expects her to reveal her views and motivations. Lays out his personal vision for what makes a qualified justice. Pretty standard. Kohl is the second Senator to bring up Kagan's past quote referring to the confirmation process as a “vapid and hollow charade.”
Posted at 1:06pm
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Republican Sen. Jeff Sessions argues that Kagan has less "real" legal experience than any Supreme Court nominee in over 50 years. Sessions also brings up her college thesis and how it "seems to bemoan the downfall of socialism in New York." Expect a lot of this. Lots of criticism on her past work in academia and in the Clinton administration.
Sessions also implies that Kagan may be soft on terror. Rips her work as Solicitor General.
Posted at 12:51pm
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Sen. Leahy rips into the Supreme Court's ruling in Bush v. Gore and proceeds to criticize the Court's decision in Citizens United.
Leahy: The Decision created a large "jolt to the system" and opened the door for millions in cooperate money into elections.
Posted at 12:44pm
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Leahy decries so called “conservative” judicial activism. Applauds “safety nets,” and the decision to ban child labor. Seriously.
Posted at 12:42pm
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The nominee has arrived. Kagan will be introduced by Senators Brown and Kerry (she is a Harvard lady, after all). Opening statements to begin in minutes. Patrick Leahy is presiding over this gig. He is opening with a tribute for the late Senator Robert Byrd. Leahy also uses the opportunity to take a shot at the Iraq war. If Kagan is confirmed, there will be 6 Catholics, 3 Jews, and zero Protestants on the Court.
Posted at 12:30pm
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FrumForum will be liveblogging Elena Kagan's Supreme Court confirmation hearings. The hearing are scheduled to begin at 12:30 ET.
As is always the case when you put members of Congress in the same room as television cameras, today will involve a lot of acting. But with a significant Democratic majority in the Senate, Elena Kagan will almost certainly be confirmed.
Politics will play some role, as it always does. Senator John Cornyn, who is the head of the NRSC and Chuck Schumer, who ran the Democratic Senate election committee in ‘06 and ‘08 sit on the Senate Judiciary committee. Both understand the politics of a nomination fight in nuanced ways. Today will have little short term electoral impact, but it could have long term impact on fundraising operations for both parties since interest groups like the Chamber of Commerce will be keeping a close eye on the hearings and will be making their opinions heard before the vote.
Republicans will likely focus on Kagan's military record. If you look at Republican witnesses, you might wonder why so many current and former members of the military are included. The answer is that Republicans have questions about Kagan's views on military matters. In fact, Kagan's dealings with military recruiters while at Harvard Law School and her 2003 statement (while she was Dean of HLS) that “Don't Ask, Don't Tell” is “a moral injustice of the first order” offer Republicans the only straightforward attack against Kagan's credentials that they have available.
While at Harvard, Kagan attempted to implement a modified ban (so as not to violate the law) on military recruiters. She only stopped when the DOD threatened to withhold funds to Harvard. Sen. Jeff Sessions has already gone on the attack, stating publicly that while serving as Dean of HLS, she “punished [the recruiters] and relegated them to second-class status."
Republicans to Watch
Scott Brown: Harvard is in Massachusetts and Brown is a moderate Republican. It will be interesting to see if Brown defends Kagan when Sessions and company go at her. Also, will he vote to confirm her? Probably not. But he may try to at least keep things civil.
Orrin Hatch: He was one of seven Senate Republicans that voted to confirm Kagan as Solicitor General. He probably won't vote to confirm her to the Supreme Court, but it will be interesting to see what sort of questions he throws her way.
Jon Kyl: Voted to confirm Kagan as Solicitor General. Unlikely to vote for her now, though.
Lindsey Graham: He voted for Sonia Sotomayor and has a history of working across the aisle (although the Democrats hung him out to dry on the energy bill). Graham has issued a tacit defense of Kagan. After meeting with the nominee, he told reporters that "I think I understand her position better... I didn't find her differences with DOD policy to translate that she doesn't admire and respect our men and women in uniform. I didn't find that to be the case at all." Graham is probably the only GOP vote in play on the Committee. If he does not vote to confirm, it might be a sign that the conservative pressure is starting to get to him despite the fact that he doesn't face re-election until 2014.
Look for a lot of the normal questions: for example, what makes you qualified to be on the Supreme Court? Both sides will ultimately make this debate not about a nominee in particular but about the nature of who gets to sit on the Court. Kagan hasn't been a judge. Republicans will press this issue hard. Expect more than a few Senators to ask whether she is truly qualified based solely on what they will certainly term “Ivy League” academic credentials.
Also, there is the Goldman Sachs issue. Kagan did some work at Goldman. Will Republicans go at Kagan despite their prior defense of Wall Street on issues like financial reform? Or will they stay away from the issue?
We shall see.
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American Bar Association Witnesses
Kim Askew, Chair of Standing Committee
William J. Kayatta, Jr., First Circuit Representative
Majority Witnesses
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande “Nan” Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor Jack Goldsmith, Professor of Law, Harvard University
Marcia Greenberger, Founder and Co-President, National Women’s Law Center
Jack Gross, plaintiff, Gross v. FBL Financial Services Inc.
Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire
Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard law School
Kurt White, President, Harvard Law Armed Forces Association
Minority Witnesses
Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army
Posted at 12:05