Coburn:  You’re very pro-choice, you support same-sex marriage.  Don’t hide your positions.  Kagan:  My policy positions aren’t the same as my judicial positions.  [Kagan disputes Coburn's characterization of her position on foreign law, but doesn't dispute what he says about her policy positions on abortion and same-sex marriage.]

Kagan:  Foreign law not binding, not an independent basis of support for vast majority of legal questions.  Could have relevance on limited issues.

Coburn:  Is precedent more important that original intent?  Kagan:  First Amendment speech doctrine departs considerably from original intent.  E.g., NY Times v. Sullivan libel protection.  But principles embodied in First Amendment couldn’t be protected without holding in NY Times v. Sullivan.  [EW:  Highly contestable.  Political processes can provide needed level of libel protection.  Kagan doesn't explain why precedent ought to supersede original meaning.]

Kagan:  Pragmatic approach describes what Court has done.  Tries to hide behind Chief’s robe.

Coburn:  Would law requiring everyone to eat three vegetables a day violate the Commerce Clause?  Kagan:  Dumb law, but that doesn’t mean it’s unconstitutional.  Congress’s authorities are enumerated, but Commerce Clause has been interpreted broadly, with very limited exceptions for non-economic activities.  Principal protector against bad laws is the political branches.  Cites Oliver Wendell Holmes quip that people have the right to go hang themselves.

Coburn:  What if congressional finding that vegetable requirement would cut health-care costs?  Kagan:  There are limits on Commerce Clause.  Commerce Clause has been read broadly and deferentially since early days.  Problems are for political processes to solve.