Politics & Policy

Live-Blogging the Kagan Hearings: Day Two

9:09 A.M.: Committee chairman Patrick Leahy (D., Vt.) takes his prerogative and begins the questioning. He opens by asking her about the process of the hearings. Will she talk about substance, in accord with her 1995 article, and discuss cases that could come before the Court?

Leahy asks her about recusal.

“I would recuse myself on any case in which…I’ve signed any kind of brief.”

9:24 A.M.: Leahy asks Kagan what seems like a direct question on the Second Amendment in light of Heller and McDonald v. Chicago. Do these cases establish a fundamental right to keep and bear arms?

Kagan says that there is no question that they do — but on the grounds that it was “binding precedent” and entitled to the “respect” thereof. Not an answer on how she would have decided the case, obviously.

9:28 A.M.: Leahy gives Kagan a chance to lay a foundation for addressing the Harvard Law military recruitment question.

“Military recruiters had access to Harvard students every single day I was dean,” Kagan says.

9:33 A.M.: Leahy asks Kagan about a supportive op-ed written by a Marine Corps judge-advocate who had graduated from Elena Kagan’s Harvard Law.

Kagan said it was the only time she had cried during the nomination process.

9:36 A.M.: Sen. Sessions (R., Ala.) begins his questioning with Constitutional change. Kagan says the Constitution doesn’t change, but that “Constitutional law that we live under does develop over time” when applied to new circumstances “the Founders never dreamed of.”

“The question is always, what the law says,” Kagan tells him, not “personal beliefs.”

9:42 A.M.: “Do you agree that you are a legal progressive?”

“Senator, I honestly don’t know what that label means.”

Sessions follows up, asks again.

Kagan replies, “I think people should be allowed to label themselves, and I don’t know what that label means so I guess I’m not going to characterize it one way or another.”

9:46 A.M.: Sesssions gets quickly to Harvard military stuff, Kagan is quick to put the policy on his predecessor, Dean Clark.

9:51 A.M.: Kagan won’t back down on oppositio to DADT, which she calls “unwise and unjust.” She tries to clarify her brief to the Supreme Court, which she says didn’t challenge DADT, but argued that Harvard Law policy was consistent with federal law for military recruitment.

9:55 A.M.: Sessions says Kagan gave military “the runaround” under theory that there was “some loophole in the statute” that meant Harvard didn’t have to follow it.

Kagan tries to defuse one of Sessions’ weapons. Sessions asks her how Supreme Court ruled on her amicus brief re: DADT and recruitment policy. Kagan answers directly. “They rejected it 9-0.”

10:03 A.M.:  Sessions says that although he is sure Kagan respects our troops, “your actions helped create a climate that was not healthy for the military.”

“Isn’t it a fact that the policy was not a military policy, but a law passed by the United States Congress?”

Sessions says that Kagan treated military personnel as “second-class.”

Kagan: We never suggested any members of the military should be “criticized in any way” for this. “All that I was trying to do was ensure that Harvard Law School could also comply with its discrimination policy.”

10:08 A.M.: Sessions: “I’m taken aback by the tone of your comments.” “I know what happened.”

10:10 A.M.: Sen. Herb Kohl (D., Wis.) opens with what seems like a softball, asking “why do you want to serve on the Supreme Court.” But Kagan doesn’t have a great answer, a sort of Ted Kennedy moment. Kohl follows up and asks “what are the issues that motivate you.”

Kagan is not taking the bait. She says she is motivated by “safeguarding the rule of law.”

Kohl then asks how Kagan would help the American people as a member of SCOTUS. Kagan, again, is wary. She says judges shouldn’t come with a substantive agenda. She says she will take it “one case at a time.”

Kohl won’t quit. SCOTUS decides which cases to hear, “which cases will motivate you?” Kagan’s answer is purely procedural.

It wouldn’t be crazy to see this and think Herb Kohl trying to sabotage Kagan from the left.

10:21 A.M. Kohl asks her about the “air of vacuity and farce” stuff in the 1995 article about judicial confirmation hearings. Kagan repeats what she told Leahy earlier, that she “got some of the balance wrong.”

Kohl is getting exasperated. He asks Kagan which direction she’ll move the Court. Kagan dodges. Kohl quotes Kagan from her 95 article. (Paraphrasing) ‘It is a fair question to ask a nominee in which direction she will move the Court.’

Kagan says “it might be a fair question…” with a smile. Kohl says “I won’t necessarily get a fair answer.”

Kohl then asks Kagan to name specific justices she would emulate. Kagan won’t. “My, oh my,” Kohl says. “Lets move on.”

10:34 A.M.: A discussion of anti-trust law. Then Kohl asks Kagan about cameras in the Court. She favors them. What happens in the Court is “an incredible sight.”

10:44 A.M: Sen. Orrin Hatch (R., Utah) focusing on First Amendment, Citizens United. Kagan argued for government, the losing side, before the Court, and confirms that she thinks the case was wrongly decided.

10:54 A.M.: Great Hatch quotation when he interrupts a Kagan answer. Hatch: “We have to have a back and forth every once and awhile or this place would be boring as hell.” He then adds that he’s been informed hell is not boring.

10:56 A.M.: Kagan won’t answer whether she personally believes aspects of the Citizens United decision, especially whether restrictions on free speech based on the identity of one party (corporations, and unions) are often designed to restrict the content of that speech.

Kagan says campaign finance laws were “selfless” of Congress, because all empirical evidence suggests union and corporate money protects incumbents.

“Tell that to Blanche Lincoln,” Hatch says. “Lincoln is one of the nicest people around here who had ten million spent against her by the unions, just because they disagreed with her.”

11:11 A.M.: Sen. Diane Feinstein (D., Calif.) opens up with a partial-birth abortion questions.

Moves on to executive authority. What is the president’s ability to detain individuals under the law of armed conflict?

Kagan says the Obama administration has a definition of enemy belligerents under the Authorization of the Use of Military Force and supported by the Hamdi case. S.G. office always argued for detention authority based on statutes.

Feinstein asks whether president has limits on detention when there is no specific statutory authority.

Kagan makes a lawyerly, though useful, distinction. “Zone 1″ where POTUS has authority of Congress to detain. “Zone 2″ where Congress has said nothing. “Zone 3″ where POTUS is acting against Congress. She says instances where president can act “in spite of” Congress are “few and far between” but not non-existent.

Generally, “the president if told by Congress it can’t do something, can’t do something.”

Feinstein: Can POTUS detain U.S. citizens without charges? Does it matter where they were arrested?

Kagan: This is a case that will likely come before the Court, she won’t answer. Cites 4th-Circuit decision (connected with fellow SCOTUS nominee Sydney Thomas I believe).

11:31 A.M.: Feinstein hits Congress’s power to protect environment under Commerce Clause.

Feinstein: can individual citizens prove that they were harmed directly by global warming?

Kagan: A qualified yes.

12:20 P.M.: Senator Kyl brings up Kagan’s apparent comparison of the NRA to the KKK as “bad guy orgs.” Kagan says it is “ludicrous” to compare the two.

Kyl then asks about the Arizona e-verify law, but it’s a most technical and procedural discussion.

12:30 P.M.: Senator Feingold (D., Wis.) launches right into Citizens United decision. He asks whether Court’s decision was “unprecedented.”

Kagan says “it is an unusual action, yes.” Feingold asks whether it was unusual how they arrived at the position. Kagan stalls. “It was unusual wasn’t?” Kagan: “The case as it came to the Court, did not precisely address — did not address — the question” that the Court ultimately decided the case on. This is a little win.

12:40 P.M.: Feingold asks executive authority questions, little red meat here. Turns his attention to the Second Amendment, and Heller (which he supports). Kagan saying all the right things about Second Amendment, describes her policy work in Clinton White House on the issue as common sense and “anti-crime.”

12:51 P.M.: Kagan, “White House experience taught me to respect the other branches of government . . . I don’t think the Courts are all there is in this government.” Courts “police” the area. Congress and Executive should make most of the decisions.

An interesting slip though. Kagan first says “when it comes to policy, I think it should be Courts — excuse me, I think it should be Congress and the president” who decides.

1:05 P.M.: The committee breaks for lunch, and so does your humble blogger.

2:28 P.M.: We’re back in session and its Sen. Chuck Grassley (R., Iowa). Grassley asks how her views on constitutional interpretation will affect her decisions.

Kagan describes herself as “pragmatic in my constitutional interpretation.” Judges should look to text, history, and precedent.

Grassley asks about Kagan’s being “not sympathetic” to pro-gun rights case as clerk to Marshall. Kagan defends herself by saying that the precedent of Heller wasn’t in place. Grassley asks if Heller had existed, would she have been in favor? Kagan says “it would have been an entirely different case.”

Grassley: Is there an individual right to bear arms?

Kagan: I think Heller is the law of the land going forward. Not an expert on Second Amendment, but accept the Court’s analysis “and will apply it, going forward.”

Grassley asks, oddly, whether we have right to bear arms independently of Constitution. Grassley wants to know Kagan’s view of natural right?

Kagan dodges. “The fundamental legal question is whether the Constitution” protects such a right.

Ok, I see where Grassley is going now. He is looking to get Kagan to say the right to bear arms is a fundamental right, by moving the conversation outside the law to philosophy. She won’t.

2:40 P.M.: Grassley now asking questions about the curriculum at Harvard Law. He moves on to the validity of international law in deciding cases. Kagan says judges should use all sources to help them reason through decisions, but that the Constitution is basic.

Grassley: Which foreign countries do you suggest we look to?

Kagan: Look to wherever there are good ideas. The big money quote may be: “There are some cases in which the citation of foreign law, or international law, might be appropriate.”

Grassley asks questions about Kagan’s Oxford thesis. Kagan defuses: I wrote that paper before I’d spent a day in law school. I didn’t know a lot about the law.

Grassley says “if I accept your answer, then it spoils a whole five minutes I have here.” Laughter.

2:57 P.M.: Grassley moves on to Kagan’s admiration of Justice Ahoron Barak, former chief justice of Israel. Barak was an unapologetic activist. Grassley asks if Kagan will look to his philosophy for guidance. Kagan says she won’t. She admires Barak for his role in creating an independent judiciary in Israel. She says it is “no secret” that she is Jewish. “The state of Israel has meant a lot to me and my family.”

3:00 P.M.: Leahy brings in praise for Barak from conservative legal luminaries Justice Antonin Scalia and Judge Richard Posner. He quotes Associate Justice Alito saying it is occasionally proper to look at foreign precedent.

Here Sessions objects to Leahy rebutting GOP questions on behalf of Kagan. Sessions also quickly puts Posner and Scalia in context. They, unlike Kagan, have expressed a difference with Barak’s philosophy. He says that Leahy has misquoted or failed to quote completely.

3:04 P.M.: Darth Specter begins his questioning with snipes at both Leahy and Sessions for interjecting. There are 99 Senators who won’t miss this guy.

3:12 P.M.: Specter’s method is to frame an elaborate question, ask Kagan for a pointed and direct response and then, the second she starts to hedge, cut her off and say he’s moving on to the next question. It seems like he has no dog in this fight and he knows it. His questions are bitter above all else.

3:17 P.M.: Kagan calls Citizens United was “a jolt to the system.”

3:19 P.M.: Look up at the 3:00 P.M. update. Phil Klein at AmSpec has Kagan’s full comments on citation of foreign law.

3:34 P.M.: Sen. Lindsey Graham (R., S.C.) starts by asking Kagan whether the Senate is doing a good job in the hearings. Kagan says, yes.

Kagan: “I’ve been a Democrat all my life.” “My political views are generally progressive.”

Graham asks Kagan whether Miguel Estrada was qualified to sit as an appellate judge (he was appointed by Bush and blocked).

Kagan: “He is qualified to sit as an appellate judge. He is qualified to sit as a Supreme Court justice.”

Graham: “Your stock just went way up with me.”

Then begins a lengthy colloquy on the war on terror and detainee policy. Both agree that this is an “instant replay” of their exchange on this topic during Kagan’s SG confirmation hearings.

3:54 P.M.: Levity.

Graham: “I just asked where you were at on Christmas.”

Kagan: “Like all Jews, I was probably at a Chinese restaurant.”

Leahy: “I could almost see that one coming. Senator Schumer informed me of that earlier.”

Schumer: “No other restaurants are open.”

The discussion moves to discussion Miranda and the public-safety exception. Kagan admits that it is narrow, for things like finding a weapon, securing a crime scene etc. Graham asks if it would be in U.S. best interest to give intelligence community flexibility to get intelligence before Mirandizing.

Kagan: It’s a question that might come before the Court in some guys. . .

Graham: Forget about the Courts, as a patriotic American. . .

Kagan: “I’m reluctant to say how I would think about the question as an average everyday citizen because I might have to think about the question as a judge.”

Graham: Should we apply domestic criminal law to war on terror, unchanged? Is that a good thing? If we just made terror a crime, would we be limiting ourselves?

4:02 P.M.: I missed the exact context, but Graham just said: “Back home, it wouldn’t hurt that the Harvard Law School dean was mad at Lindsey.”

4:03 P.M.: Graham: “Do you believe that this country submitting a suspected terrorist to military commission trial is within our value system? Do you personally feel comfortable with that?”

Kagan: “I do. I wouldn’t be a part of this administration if I didn’t think so.”

4:04 P.M.: On to Senator Schumer (D., N.Y.). He starts off asking Kagan about judicial modesty, and then lets her talk for ten minutes straight w/o interruption. Ha.

4:12 P.M.: Kagan: “Activism does not have a party. . . or a philosophy.”

4:21 P.M.: Schumer asks Kagan whether she thinks Constitutional rights are absolute. Kagan says no w/respect to First Amendment. Subject to reasonable limitations. He segways to Citizens United. He gets no new red meat from Kagan.

4:26 P.M.: Schumer moves on to Kagan’s admiration for Barak. Compares glowing words Kagan wrote about conservative Posner.

4:58 P.M.: What was supposed to be a ten-minute break has run quite a bit longer. The committee is waiting for Elena Kagan to return.

5:02 P.M.: We’re back in session, and Sen. John Cornyn (R., Texas) is asking about Miguel Estrada again. You can tell this still stings Senate Republicans.

He moves into Brown v. Board. Cornyn says you can support Brown on Originalist grounds, that it didn’t change the Constitution, apparently contra Kagan. Quotes Reconstruction-era Senator Charles Sumner against segregation.

But Kagan said she’d never claim that Brown “changed” Constitution. Just reinterpreted it. “It is hard to make the case that school discrimination was thought of in 1868.” 14th Amendment is broad on purpose. “Genius of the Constitution” was its lack of general specificity, which allowed its reinterpretation in light of new circumstances.

On “living Constitution,” Kagan says she doesn’t like the “loosey-goosey” interpretation associated with that phrase. She doesn’t agree with it.

5:16 P.M.: On the military recruitment stuff from this morning. The Senate Republican Judiciary shop sends me this fact check:

CLAIM: “Military recruiting went up” during the time the military was barred from the Career Services Office.

FACTS: Arguments pointing to the number of Harvard Law students who joined the military from the Class of 2005 are specious.  On-campus interviewing reaches first- and second-year students considering their employment options a couple years in the future.  The Harvard Law Class of 2005 would have been recruited during the time the military enjoyed full access to the Career Services Office, not in the Spring of 2005—a mere three months before graduation—when Kagan blocked military recruiting (and before Harvard was forced to again relent).

Here’s Sessions saying that Kagan’s testimony on her role in the affair is “disconnected” from reality:


5:21 P.M.: Cornyn again covers the ground of Heller and McDonald. Cornyn again asks Kagan if she thinks Second Amendment confers a fundamental individual right for law-abiding Americans to keep and bear arms. Kagan again falls back on stare decisis, won’t answer if she agrees with it.


5:34 P.M.:  Sen. Durbin now questioning Kagan. A bit of a curve-ball. He starts in on prison reform, sentencing disparities for crack and cocaine.


5:41 P.M.: Kagan won’t answer whether she thinks sentencing disparities reflect an inequality under the law.


5:42 P.M.: Durbin now moves into questioning on the death penalty. Kagan: the constitutionality is established law and entitled to weight of precedent. She volunteers that she has no moral qualms about the death penalty. She says her position is different than Justice Marshall’s.


Live-blog will go black for a bit. Be back shortly.


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