9:30 A.M.: The committee’s junior liberal, Sen. Sheldon Whitehouse (D., R.I.) spends his questioning on Citizens United and corporate liability. It’s a fairly facile set of liberal = good, conservative = bad arguments. Kagan won’t take the bait in Whitehouse’s characterization of the Roberts Court.
9:36 A.M.: Sen. Klobuchar opens her questioning by asking Kagan about Chief Justice Roberts’ judges as umpires metaphor. Kagan says its apt in many ways but “has its limits.” Judges shouldn’t enter a case siding with “a particular team.”
“The metaphor might suggest to some people that law is a kind of robotic enterprise. . . that it’s easy. . . that everything is clear cut. . . that there’s no judgment in the process. . . I do think that that’s not right” especially at the Supreme Court level.
“Judges do in many of these cases have to exercise judgment.” But it’s “law all the way down.”
9:54 A.M.: Klobuchar moves into a series of fairly non-ideological questions about procedure and due process, the importance of making decisions that don’t put undo burden on prosecutors/courts.
10:03 A.M.: Winding down to the end of the first round, Sen. Ted Kaufman (D., Del.) begins by asking about the difference between White House job and Supreme Court job.
Kaufman moves into anti-trust law.
10:14 A.M.: Back to Citizen’s United, but Kaufman promises “new ground.” He points out that the unusualness of two rounds of arguments, and of Courts instructing parties to brief for a different question than the one that came to the Court originally.
Kagan: “The worst thing you can say about a judge is that he or she is results-oriented.” They are “picking sides.”
10:25 A.M.: Kagan says Congress has broad authority under the Commerce Clause to regulate the financial markets. She says “the wisdom of a statute” shouldn’t enter a judge’s mind. This is a continuation of her answer to Tom Coburn of yesterday, regarding whether a law to mandate what Americans eat would be unconstitutional.
10:33 A.M.: Sen. Al Franken (D., Minn.) begins his questioning, the last of the first round. He starts with mandatory arbitration.
10:46 A.M.: Franken moves on to Citizens United, cites 80 percent public disapproval. Criticizes the manner in which the case was decided.
10:55 A.M.: Kagan endorses Chief Justice Roberts statement that if Court doesn’t have duty to decide more, they have duty not to decide more. Franken says Roberts and Scalia abandoned their principles and “legislated from the bench” in Citizens.
11:38 A.M.: Back after a break. Leahy concludes his brief second round and now Sen. Sessions is beginning his follow-ups.
11:41 A.M.: After scoring few points on Harvard military recruiting follow-ups, Sessions moves to the Commerce Clause, which he calls “the last refuge of the big-government scoundrel.” Sessions is returning to Coburn’s line of questioning about the limits of Congress’s Commerce Clause power (can the government tell you how many vegetables you must eat etc.), but he doesn’t follow-up hard. He missed a real opportunity here.
11:45 A.M.: After Sessions ends his questions, Leahy continues practice of rebutting Republicans by entering favorable documents into the record.
11:48 A.M.: Senator Hatch begins his round by defending Roberts Court against charges of “conservative activism.” He points out that ACLU sided with conservative justices in Citizens United, and that Exxon decision was written by Justice Souter.
11:53 A.M.: They are now talking about United States v. Stevens, a free speech case about the creation of videos depicting extreme cruelty to animals.
11:58 A.M.: Hatch goes back to military recruiting. The question is not who sponsored military recruiters, the question was what they were able to offer on the campus. He points out that the law requires the same access to campus and students for the military as other employers receive. Hatch says the veteran’s group put in to sponsor the military in lieu of the office of career services did not have similar resources or access.
Kagan says the veteran’s group was an adequate substitute.
12:03 P.M.: Hatch is taking up the topic of the Shannen Coffin piece. Could be interesting.
Hatch: “Did you write that memo?”
Kagan: “With respect, I don’t think that’s what happened here.”
Kagan says “the document is certainly in my hand-writing. I don’t know if the document is the product of a conversation I had with them . . .”
Kagan says Clinton had “strong views on this issue” and favored health exceptions. “We tried over the course of the period of time when this statute was being considered. . . to get him the best medical evidence on this subject as possible.” “We tried to bring all the conflicting views to his attention.”
“What ACOG thought was . . . on the one hand they couldn’t think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case. . . but they could think of circumstances in which it was the medically best procedure . . . with the least risk attached to it.”
“We knew that ACOG thought both of these things. . .”
Kagan goes on. Hatch asks again “did you write ‘this would be a disaster’?” Kagan says yes, the disaster would be that ACOG didn’t express both parts of what it believed.
“In their final statement, that sentence. . . that it was not the only procedure of course remained.”
Hatch says “this bothers me a lot,” that he know there are plenty of doctors in ACOG who did not believe partial-birth abortion was a necessary procedure. “That bothers me that you intervened in that particular area in that way.”
Kagan says there is “no way” she “would have or could have” gotten ACOG to change its medical opinion.
12:27 P.M.: Sen. Feinstein gives Kagan a platform for a lengthy discussion of the Establishment Clause of the First Amendment, and on the question of who has standing to sue in federal courts. Interesting, not particularly ideological.
Feinstein then gives a statement on gender equality, focusing on the courts.
12:31 P.M.: Senator Grassley opens his questioning with private property/eminent domain issues.
Kagan says private property is “a foundation stone of our liberty.”
12:38 P.M.: Grassley moves on to Second Amendment.
12:54 P.M.: It’s the second round for Darth Specter. He is just as combative as yesterday.
1:09 P.M.: An hour recess.
1:37 P.M.: Phil Klein has a better transcript of the Kagan/Hatch exchange on partial birth abortion.
2:13 P.M.: We’re back in session and it’s Sen. Jon Kyl’s turn. He’s talking Gitmo detainee policy. He’s asking whether she thinks habeus extends to the prison in Bagram. Kagan says no.
Kagan says she “has no preexisting views” of how she would deal with detainee policy “as a judge.” This is a very scholastic distinction, but one made by Kagan repeatedly throughout the hearings. Her advocacy as SG has nothing to do with how she’ll view things as a judge.
2:21 P.M.: Kyl bringing up whether there is a federal constitutional right to same-sex marriage. When Cornyn asked Kagan this during her SG hearings, she said no. (I did not know this.)
Kagan saying she provided that answer to ensure Cornyn that she could defend the Defense of Marriage Act as SG.
Kyl wants to know whether she’s saying there isn’t a constitutional right, or the courts haven’t found one yet. It’s good, tough questioning. Kagan won’t answer directly. She says only that she “understands the state of the law” and could defend that precedent.
Kyl follows up with tough questions on extent of SG contact with White House with respect to positions on cases. Kagan won’t talk about specific contact with the White House that may have provided political motivation in particular cases.
2:31 P.M.: Kyl now questioning Kagan to clarify her position on foreign law as precedent. This is the best round of questioning so far, probably.
Now he’s asking a question from George Will about the living/dead Constitution distinction. Will suggests, pace Scalia, that Constitution meant to install rights and prevent them from being taken away.
Kagan says Constitution is “meant to endure for the ages” but “it is asked to apply to changing circumstances.” “In the course of that application, there is development in Constitutional law.”
2:34 P.M.: Kyl picks up the Coburn/Cornyn questions on Commerce Clause. He calls Kagan’s opinion overly broad. Isn’t saying it’s not up to the Courts to look into the wisdom of laws passed under Commerce Clause an abdication of Court’s authority? Kagan doesn’t give any red meat in her response.
2:38 P.M.: Sen. Graham starting his second round with Plessy v. Ferguson to Brown v. Board arc. Graham wants to know how the Court could reach two different conclusions with no change in the Constitution. How is that consistent with strict-constructionism, he asks.
Kagan says precedent changed, and understanding of the world change. By the time the Court got to Brown, Kagan says, holding Plessy would have actually been inconsistent with a series of intervening rulings in the 60 years between cases. “It’s doctrinal support had been completely eroded.”
Interesting bait-and-switch, Graham transitions to Roe v. Wade, and how it was changed over time. Graham wants to know if it is fair to consider scientific changes in the notion of fetus viability in reaching abortion decisions.
Graham says, just as it would have beeen wrong not to consider changes between Plessy and Brown, it would be unfair not to consider the evolving science on fetus viability. Graham is at his best in this Matlock mode.
2:48 P.M.: Graham: Would Harvard anti-discrimination policy have applied to Catholic Church since they don’t take woman priests?
2:50 P.M.: Graham now getting to the ACOG stuff. He’s really good at this honey-not-vinegar line of questioning. If I believed as you sincerely do, he’s saying, I’d be pushing for the same thing. “Somebody with your background and view of this issue, you were trying to change this and broaden it.”
Kagan: “With respect Senator, it’s not true.” Kagan says she has no agenda.
Graham: “Now wait a minute, I certainly have an agenda when it comes to abortion.” It’s okay to have an agenda as an advocate, Graham says. Kagan is cornered here. Her answer — that she was trying to push Clinton’s agenda — rings falsely.
Graham: “You were pushing the envelope in terms of the left side of the aisle.” Just like Roberts, working for Republican administration, pushed it in the other direction.
“Quite frankly, I’m surprised to hear that.” Graham says if he were in Kagan’s position, he would do anything he could to push the law in his direction.
2:56 P.M.: Graham says “Can you name a single activist judge.” Kagan won’t. “If I do that, I have a feeling I’ll do many things that I’ll regret.”
Good round of questions.
2:59 P.M.: Sen. Ben Cardin up now. (Random note: Kagan called him Senator Carhart).
3:09 P.M.: Frankly, I missed the end of Cardin and the Graham back-and-forth b/c I had to take a call. Catching back up as Sen. Cornyn starts his second round.
3:26 P.M.: Cornyn asking a series of questions on Harvard military policy. Cornyn has a good point. If it didn’t discourage military recruiting, what other purpose could your policy have had but to stigmatize the military. In effect, Cornyn says, you gave the military “separate but equal” facilities. Kagan denies this.
3:54 P.M.: We’re back in session. Whitehouse back to questioning. Nothing to see here.
4:08 P.M.: Sen. Coburn (R., Okla.) asks Kagan straight-away: do you believe Miguel Estrada should have been confirmed. After hedging, Kagan says “yes.” Coburn: You would have voted for him wouldn’t you have?
Kagan. “Yes. I hope I would have anyway. Who knows what it feels like to be one of you guys.”
4:13 P.M.: Coburn says there is a “marked change” in the last few decades in liberty. He segues into health-care. That’s what the vegetable question was about. “You know where I was going” he tells Kagan.
Coburn says SCOTUS view of Commerce Clause post-1937 is “counter” to Founders, has accompanied our decline of liberty since then.]
4:22 P.M.: Coburn asks whether Congress is abandoning tort law and contract law.
4:25 P.M.: Kagan pledges to Coburn that she will re-read The Federalist Papers.
4:27 P.M.: Coburn is trying once more to ask if Kagan personally believes in a natural right to bear arms. Kagan says she doesn’t have a view of what natural rights are independent of the Constitution. “Are there inalienable rights?” Coburn asks. “You shouldn’t want me to act on the basis of such a belief,” Kagan responds, but only within the law.
4:29 P.M.: Klobuchar argues women, for instance, are freer now than in 1980. Kagan eager to jump on the idea that women are freer now to pursue opportunities than they were 30 years ago. She says women could be made freer still.
4:40 P.M.: Franken’s round two. Opens with proposed merger between Comcast and NBC-U.
4:47 P.M.: Franken volunteers to “help” Sen. Graham find a judicial activist. He says Legion, Citizens United represent judicial activism — failure to rule narrowly, disrespect for precedent.
4:57 P.M.: Franken says Thurgood Marshall was “not some radical activist.”
Kagan: “Thurgood Marshall is a hero of American Law and a hero of mine,”
5:00 P.M.: Sen. Sessions, round three.
Sessions: “It’s not activism to reverse a bad decision.”
5:12 P.M.: Here’s video of Sen. Cornyn (R., Texas) above, pressing Kagan on military recruitment.
5:13 P.M.: Sen. Grassley’s round three.
The first appearance of “penumbras and emanations.” Grassley asks Kagan if she agrees that there are rights “between the lines” of the Constitution.
Kagan says she would not subscribe to the penumbra approach. But she does support the result in Griswold v. Connecticut, where the phrase appears.
5:22 P.M.: Senator Coburn will close out with the last round of questioning. Then Kagan and Leahy will make closing statements, followed by a session in a secured, closed session.
Coburn tries once more on the Commerce Clause.
5:30 P.M.: Sessions offering a closing statement. Sessions says Kagan’s actions at Harvard re: military recruitment were “not consistent with the law.” He says he is “troubled” by some of Kagan’s statements.
5:36 P.M.: Leahy now offering closing statement.
5:40 P.M.: Recess!!!!