GOP Senators Grill Kagan
On day two of Elena Kagan's confirmation hearings, the GOP challenged her to defend her position barring military recruiters while Dean of Harvard Law.
Well, it didn't take very long for Elena Kagan to completely revoke virtually everything she said in a 1995 law review article. In that review, Kagan argued that because nominees would not talk in meaningful ways about the issues they would face on the bench, Supreme Court confirmation hearings had taken on “an air of vacuity and farce.”
It took all of one Senator, Patrick Leahy, for Kagan to sprint to the oh so popular fallback: “I can't talk about cases or issues that may be before the court."
According to Kagan, our very own Sen. Orrin Hatch motivated her to rethink the wisdom of the argument she made in her review. Apparently, Senator Hatch had a chat with Kagan back when the two met for their pre-confirmation meeting. According to Kagan, Hatch said she might consider moderating her openness.
Said Kagan: “I basically said to Senator Hatch that he was right, that I thought that I did have the balance a little bit off and that I skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints… And I think that that was wrong. I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”
Kagan has been true to her word. Today has been every bit the same old song and dance that the Sotomayor, Roberts, and well basically every hearing since Bork has become. She wouldn't even comment on Bush v. Gore, which was a unique case that is not binding precedent....so it’s difficult to figure out why she couldn't comment on it beyond fearing that she might anger potential voters and/or her future colleagues.
Kagan did make an exception to speak about one case, the one the Democrats used frequently during their opening statements to portrey the Roberts court as a band of “judicial activists” in the pockets of corporate America: Citizens United. Kagan had defended the campaign finance laws before the Court and the justices had ruled against her position. Kagan claimed that she had concluded -- over the course of defending the campaign finance laws at issue in the case – that, in fact, the Court should not rule the laws unconstitutional.
Kagan knows who nominated her and which party is going to vote for her confirmation. Citizens United was far and away the court ruling issue Democrats brought up most frequently yesterday and Kagan’s comments were her way of signaling to Democrats that she was on the same team.
Not surprisingly, Kagan sparred with Sen. Jeff Sessions over her decision to protest “Don’t Ask Don’t Tell” while Dean of Harvard Law School by barring military recruiters from using the schools facilities. Kagan held her ground by asserting that DADT was “unwise and unjust” and that she was attempting to implement Harvard's anti-discrimination policy without violating the Solomon Amendment.
Sessions got cranky quickly. He told her she was “punishing the military.” Kagan insisted that she was not. Sessions wasn't satisfied, apparently, because he took the first opportunity available (the mid-morning recess) to go outside and express his disappointment with Kagan's answers on the matter.
The line of the day thus far comes from Orrin Hatch: “We have to have a little back and forth every once in a while or else this place would be boring as hell.” Amen, Senator Hatch, Amen.
* * *
UPDATE: Lindsey Graham appeared to go pretty easy on Elena Kagan. Graham seems particularly fascinated by the fact that Miguel Estrada and Ted Olson both sent letters supporting her nomination. Graham spent part of his time reading Estrada's endorsement letter aloud and asking Kagan for her opinion on Estrada. Kagan very intelligently took the hint and heaped praise on him. She explained that she was touched by Estrada's comments and that “all the nice things he said about me I'd say back to him, double.”
Like most Republicans, Graham still has a bad taste in his mouth from the Democrats' filibuster of Estrada's nomination to the D.C. Circuit (which would have fast tracked him to becoming a Republican SCOTUS nominee). Kagan told Graham that she thought Estrada was qualified to sit on the Supreme Court, which Graham seemed pleased to hear. Graham also praised Kagan for her national security work.
Based on their exchanges, Graham certainly seems open to the possibility of voting for her. It will be interesting to see how much pressure comes his way from the right though.
Posted at 4:50pm