June 29th, 2010
04:50 PM ET

Kagan hearings: Nominee answers big, tough questions

[Updated at 4:50 p.m.]

The hearing takes on a congenial tone as Senator Lindsey Graham continues to question nominee Elena Kagan, this time, about where she was when the attempted Christmas Day airline bombing attack occurred.

"Senator Graham, that is an undecided legal issue, which well, I suppose I should ask exactly what you mean by that. I'm assuming that the question you mean is whether a person who was apprehended in the United States is... "

"No I just asked you where you were at on Christmas," he interrupts. 

"You know, like all Jews, I was probably in a Chinese restaurant," she responds, provoking laughter from the crowd.

[Updated at 4:06 p.m.]

Sen. Lindsey Graham of South Carolina begins his questioning of nominee Elena Kagan by asking if she agrees with the assessment that she is "a progressive in the mold of Obama himself."

"I've been a Democrat all my life," she answers. "That's what my political views are."

"Would you consider your political views progressive?" he presses.

"My political views are generally progressive," she says.

Graham also asks her about D.C. attorney Miguel Estrada, Kagan's "seatmate"  at Harvard law school who submitted a letter endorsing her nomination.

President Bush nominated Estrada to the D.C. Court of Appeals, but Senate Democrats used a filibuster to prevent his final nomination on the Senate floor. 

Kagan praises Estrada, who was part of the team that successfully presented then-Governor Bush’s position to the Supreme Court in Bush v. Gore.

"He's qualified to serve as an appellate judge, he's qualified to serve as a Supreme Court Justice," she says in response to Graham's question of whether he was qualified to serve as an appellate judge.

"Your stock just went up with me," Graham replies, eliciting chuckles from the gallery.

[Updated at 2:28 p.m.]

Sen. Chuck Grassley has begun to question Kagan.

[Updated at 12:41 p.m.]

KEY ISSUE: COURTS AND CORPORATE MISCONDUCT

Sen. Feingold asks Kagan about the Supreme Courts ruling on damages for Exxon Valdez, in which they gave a pass to the company, and deemed damages "excessive."

Feingold asked, noting similarities may come up with the current Gulf oil disaster, whether Kagan agreed courts have an important role to play in protecting those hurt by corporate misconduct?

"This is an active area of the law, this question of what limits should be place, if any, on punitive damage awards," Kagan said.

[Updated at 12:36 p.m.]

KEY ISSUE: GUN RIGHTS

Sen. Feingold asks Kagan how the Supreme Court should go about deciding if Second Amendment rights have been infringed upon.

Kagan responds:

I believe the court will have to examine "what level of constitutional scrutiny" there should be on the issue, since some people read very differently into the meaning of one Supreme Court decision on gun rights.

"There will be some real work for the court to do," Kagan said.

[Updated at 12:31 p.m.]

KEY ISSUE: WHAT IS THE PROPER ROLE OF THE JUDICIARY IN DEALING WITH OTHER BRANCHES?

"The court has an important role. The court generally I think has an important role in leasing constitutional boundaries," Kagan said. "It might be a case in which one branch impermissibly infringes upon the authority of another branch. To the extent that political branches can work those issues out, its generally right to be considered a good thing. But there are sometimes when the court does have to step in and police those boundaries and make sure the president doesn't usurp Congress' powers or vice versa."

[Updated at 12:29 p.m.]

KEY ISSUE: CAMPAIGN FINANCE

Sen. Feingold asks if he thought it was highly unusual for the Supreme Court to rule at one point and answer a question on campaign finance that it was not asked.

Kagan answered: "Yes, it was a highly unusual circumstance."

[Updated at 12:27 p.m.]

Sen. Feingold begins his questioning of nominee Elena Kagan.

[Updated at 12:16 p.m.]

Sen. Kyl asks about notes Kagan has written calling the NRA and the KKK bad guy organizations.If you are presented with a case on NRA, would you consider it to be a bad guy or good guy? Kyl continues to ask what Kagan meant, and she explained those weren't her words but notes from a phone conversation.

Kyl followed up by asking if she would put the NRA and KKK in the same grouping.

"It would be a ludicrous comparison," Kagan said.

[Updated at 12:13 p.m.]

KEY ISSUE: JUDICIAL ACTIVISM

Sen. Kyl asks if Kagan agrees with the characterization by some Congressional colleagues that the current court is too activist in supporting the position of corporations in big business?

"Sen. Kyl, I would not want to characterize the current court in any way - I hope one day to join it," she said with a deadpan look.

Kyl laughed and responded: "...and they said you're not political."

[Updated at 12:00 p.m.] Sen. Jon Kyl asked Kagan about Obama's comments on judges and empathy - the same question he asked Justice Sonia Sotomayor during her confirmation.

Kyl asked: "Do you agree with [the president] that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?"

Sotomayor responded: "No, sir….I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge."

Kagan appeared to agree with Sotomayor and disagree with Obama’s remarks – saying the law takes you “all the way through.”

[Updated at 11:12 a.m.]

KEY ISSUE: EXECUTIVE POWER AND DETENTION OF THOSE WITH TERRORIST TIES

Sen. Feinstein asks Kagan about a discussion that went on during her 2009 confirmation hearing for Solicitor General, in which Kagan agreed that the law of Armed Conflict provides legal authority for the executive to detain individuals with terrorist ties without trial. Feinstein asks Kagan to elaborate on her views about what scope the executive has when it comes to detaining these individuals

That issue "has been and continues to be subject of a number of cases," Kagan said. "I've participated in some of those issues."

Kagan said as Solicitor General she has used guidelines set by the Obama administration in regards to who is subject to these laws and to what scope, adding that she expects challenges to arise out of it.

There are "a number of uncertain questions in this area that almost certainly will come before the Supreme Court," Kagan said, adding challenges may even be about the Obama administration's description of who falls under the jurisdiction of being able to be detained without trial.

"All of those questions are questions that might come before the court," Kagan said. "There are certainly quite a number of issues - about the exact scope."

Feinstein asks Kagan if her view changes on the President's authority detain someone depending on whether they are arrested on foreign or U.S. soil.

"The court has not addressed that issue," Kagan said. "The court has left open whether detention authority might exist for someone captured outside of the battlefield."

[Updated at 11:12 a.m.]

KEY ISSUE: ABORTION RIGHTS

Sen. Feinstein asks about a memo Kagan wrote in 1997 where she said then-President Clinton should support late-stage abortion bills to ensure the mother would be protected.

She then asked: Do you believe the constitution requires that the health of the mother be protected in regards to abortion laws?

"I do think the continuing holding of Roe and (other cases) is that woman's life and woman's health have to be protected in abortion regulation," Kagan said.

[Updated at 11:08 a.m.]

Sen. Feinstein begins her questioning of Elena Kagan.

[Updated at 10:45 a.m.]

A moment of humor breaks up an intense discussion about campaign finances between Sen. Hatch and nominee Elena Kagan.

Hatch, beginning to ask and rephrase a question, was chided by another member to rephrase his question.

"Let me ask my questions the way I want to. I will. I'm going to be fair, I intend to be. And you know that, after 34 years..." Hatch said. " Keep going, did you have something else you wanted to add?"

"No go ahead," Kagan responded.

"We have to have a little back and forth every once in a while, or this place would be boring as hell, I'll tell you," Hatch said laughing.

Kagan responded that she was happy it took the spotlight off her for a moment.

"By the way, I've been informed that hell is not boring," Hatch remarked, laughing.

[Updated at 10:36 a.m.]

KEY ISSUE: FREE SPEECH

Sen. Hatch asks about Kagan's thoughts on first amendment protections and whether political speech ranks as the most protected.

"Political speech is at the core of the first amendment," Kagan said.

[Updated at 10:30 a.m.]

Supreme Court nominee Elena Kagan said Tuesday that she supports televising Supreme Court hearings to help Americans know more about vital issues affecting the country.

"It would be a great thing for the court and the American people," Kagan said on the second day of her confirmation hearing by the Senate Judiciary
Commtitee.

[Updated at 10:23 a.m]

KEY ISSUE: IDEOLOGY

Sen. Kohl asks Kagan to identify recent justices she identifies most with in terms of judicial philosophy.

 

Kagan says she likens herself to Justice Stevens, whose spot she would fill if she was confirmed.

"I think he has done this country long and honorable service. He has simply be a marvelous justice and his commitment to the rule of law..." "That's not to say Justice Kagan would be Justice Stevens," she said.

Kagan then added: "I think it would be just a bad idea for me to talk about current justices."

"My, oh my, oh my," Kohl said. "Let's move on."

He then asked her to try to evaluate whether she was similar to any current judges by explaining how they place themselves.

[Updated at 10:17 a.m.]

KEY ISSUE: IDEOLOGY

Sen. Kohl quotes one of Kagan's article where she says it is a fair question to ask a nominee in what direction would you move the institution forward. He asks her to answer her own question.

"I will try and decide each case that comes before me fairly," Kagan said. "I can't say I'll move the court in a particular way."

Kohl responds, saying, it was her question, and she said it would be fair. Kagan previously wrote that similar nominee hearings had taken on “an air of vacuity and farce” because nominees declined to engage in a meaningful discussion of legal issue. So Kohl posed the question to her again.

"It might be a fair question ..." Kagan said, pausing and joking.

[Updated at 10:13 a.m.]

KEY ISSUE: WHAT KIND OF JUDGE WOULD YOU BE?

Sen. Kohl asks: Since we do not have a judicial record, how should we judge you?

"I think you can look to my whole life," Kagan said. "I think you can look at my tenure as Solicitor General. I think you can look to my tenure at Harvard Law School and the approach that I took. I think you can look to my scholarship and my speeches and my talks of various kinds. It may not be as easy as with someone who you can say look at the body of text, but I believe I have a life in the law, a public life in the law... I hope it will show a person who listens to all sides, who is fair."

[Updated at 10:04 a.m.]

KEY ISSUE: WHAT ISSUES MOTIVATE YOU, WHY DO YOU WANT TO BE A JUSTICE?

Sen. Kohl asks: Why do you want to be a Supreme Court justice?

"The Supreme Court is the guardian of the rule of law," Kagan said, noting that is something she cherishes. "To be on the Supreme Court and have the indeed awesome role to safeguard the law of our country is an honor."

Kohl follows up and asks what her motivations are. Kagan responds the critical thing is safeguarding that law, regardless of what the issue is.

"A judge is taking each case that comes before her and thinking about how to do justice in that case and ... enforce the law," Kagan adds.

Kohl further pushes, citing former Supreme Court justices who had passions, including civil rights and women's rights. Kohl asks where Kagan's passions lie.

"Sen. Kohl I think I will take this one case at a time," Kagan responds again. "It would not be right for a judge to come in and say I have a passion for this or that, so I'm going to rule a certain way. I look at an issue before me and try to figure out what is right with respect to that issue, to that case. If you are a judge, that means what is right in the law."

[Updated at 10:00 a.m.]

KEY ISSUE: MILITARY RECRUITERS

Sen Sessions says that he has concerns that Kagan is "unconnected to reality" in regards to how she acted regarding military recruiters at Harvard and what her actions really were and meant.

"I know you acted without legal authority ... until you were threatened by the U.S. government," Sessions said, referring to the government's threat to take away funds if recruiters were not allowed on campus.

[Updated at 9:50 a.m.]

KEY ISSUE: MILITARY RECRUITERS

Sen. Sessions continues asking Kagan about her decisions in regard to military recruiter access to Harvard. He asks whether she believes Harvard was following the law regarding access at the time.

Kagan says military recruiters had access “every single day” to Harvard students even though while as dean of Harvard Law School she opposed the “Don’t Ask, Don’t Tell” policy—calling it a “profound wrong.”

In the first heated exchange of her confirmation hearing by the Senate Judiciary Committee, Kagan sparred with Republican Sen. Jeff Sessions of Alabama over her role as dean of Harvard Law School in barring military recruiters from the university's Office of Career Services.

Pressed by Sessions, Kagan said, "I do oppose 'don't ask, don't tell,' and then was cut off by Sessions, who said, "And you did then."

"And I did then," Kagan said.

"We were trying to ensure that military recruiters had full and complete access to our students, but we also were trying to protect our anti-discrimination policy," Kagan said, explaining recruiters still had access to students through a separate office.

Sessions asks Kagan if at all times Harvard was in compliance with laws in regards to military recruiters and access on campus.

"We always thought we were acting in compliance," Kagan said.

The Solomon Amendment required recruiters be given equal access or face the loss of federal funding. The Supreme Court unanimously upheld the law on March 6, 2006. Questions arise over the extent Kagan and the Law School complied with the law.

[Updated at 9:38 a.m.]

KEY ISSUE: LEGAL PROGRESSIVISM

Sen. Sessions asks Kagan's thoughts on her politics and people's belief that she is, and there is a revival policy-driven, progressivism.

"My politics would be, must be, have to be separate from my judging," Kagan said. "I agree with you, to the extent you are saying, judging is about listening to the arguments, reading the briefs and considering how the law applies to their case, not how your own personal views, political views, might suggest anything about the case - but what the law says. Sometimes that's a hard question, and judges can disagree, but the question is always what the law says."

Sessions responds, asking if she believes some characterizations of her as a "legally progressive" person?

"I honestly don't know what that label means," Kagan said. "But as I suggested to you, my political views are one thing. People should be allowed to label themselves. I don't know what that label means so I guess I'm not going to characterize it one way or another."

Sessions responds, saying he would put her in the category of a legal progressive.

[Updated at 9:33 a.m.]

KEY ISSUE: INTERPRETING THE CONSTITUTION

Sen. Sessions asks: What ways do you believe the Constitution can be changed?

Kagan response:

"The Constitution is an enduring document," Kagan said. "The Constitution does not change except by the amendment process."

"The Constitution, does over time ... we are asked to think how it applies to new circumstances and new problems," Kagan said. "In applying the constitution case-by-case, the Constitutional law that we live under does develop over time."

[Updated at 9:31 a.m.] Sen. Jeff Sessions (R-Alabama) begins his questioning of Elena Kagan.

[Updated at 9:29 a.m.]

KEY ISSUE: MILITARY RECRUITERS

Sen. Leahy asks: Did you ever disallow the military from having access to students while you were dean at Harvard?

Kagan's response:

"I'm confident that the military had access to our students and our students had access to the military during my entire Deanship," Kagan said."The military should have the best and brightest."

"We also had a longstanding anti-discrimination policy which said that no employer could use the office of career services if they wouldn't sign a non-discrimination pledge....the military could not sign that pledge ... because of the don't ask don't tell policy."

[Updated at 9:24 a.m.]

KEY ISSUE: GUN RIGHTS

Sen Leahy asks" Is there any doubt that the second amendment secures a fundamental right for people to protect themselves with guns?

Kagan's response:

"There is no doubt Sen. Leahy. That is binding precedent... that is settled law."

[Updated at 9:17 a.m.]

KEY ISSUE: REMAINING PARTISAN

Sen Leahy asks: What principles will you use to make recusal decisions from ruling on a case and do you anticipate having to do so:

Kagan's response:

"I would recuse myself in any case in which i played a substantial role in the process," Kagain said. "I think that would include any case in which I've officially formally approved something."

Kagan said this includes some aspects of her job as Solicitor General which requires approving interventions, briefs filed in courts and appealed.

[Updated at 9:10 a.m.]

KEY ISSUE: INTERPRETING THE CONSTITUTION

Sen. Leahy asked Kagan about her views on the constitution and whether it is a changing document or if it should be followed word by word the way it was written.

Kagan's responses:

"We apply what they do, so in a way we are all originalists," Kagan said about the founders of the Constitution.

That’s a subtle nod to conservative Justice Antonin Scalia who has espoused the legal theory the Constitution should be interpreted by the exact wording of the test, and not to infer rights not proscribed by the text.

Kagan went on to elaborate on what she meant about what can be changed and when it is appropriate.

"I think its important to realize those changes come in two varieties, one is the formal amendment process - and that's tremendously important. When Thurgood Marshall said this was a defective constitution he was talking about this was a constitution that talked about slaves as 3/5 of the population and the 14th amendment changed that."

[Updated at 9:06 a.m.] Behind the scenes: Sources close to Supreme Court nominee Elena Kagan say she was told by White House aides preparing her for the hearings to speak slowly. At her hearings last year for the solicitor general post, she was cautioned about talking too fast. They also advised her to pause for a second or two before answering her question, to help her organize her thoughts and not react so spontaneously.

[Posted at 8:57 a.m.] Supreme Court nominee Elena Kagan will face a barrage of questions from senators Tuesday that will mark perhaps the beginning of the real drama of the nomination process.

Kagan's responses to tough questions from senators, and not the long-winded opening statements, are where we expect to learn more about Kagan's past record and how strongly she is able to defend it. Given her lack of judicial experience, and her long resume in two Democratic administrations, senators will want to know if she is about politics, or about the rule of law.

We'll be bring the hearings to you live all day and will be breaking down Kagan's answers on hot-button issues as well as the most interesting exchanges between the nominee and senators throughout the day.

soundoff (39 Responses)
  1. Jerome

    She will only be a puppet, wake up America.

    June 29, 2010 at 5:49 pm | Report abuse | Reply
  2. Walt

    Umm....didn't Clarence Thomas not have any experience as a judge?
    I am very concerned about all these 5-4 decisions. the current court has four conservatives, four liberals (with Kagan) and Anthony Kennedy. Therefore, Kennedy IS the supreme court. Kagan is doing good. Confirm her. And in the future try to balance the court 3-3-3 right-centrist-left.

    June 29, 2010 at 6:14 pm | Report abuse | Reply
  3. wagge

    If we are smart Americans, we will double Veto her Confirment. Just what we need is someone like her in that position.
    Come on 2012, so we can revote and get some changes. Man I have had enough of this parade.

    June 29, 2010 at 6:21 pm | Report abuse | Reply
  4. Jack Bauer

    Kagan should be voted down. No intellegent HR Director would hire someone for a position that needs a highly qualified
    candidate for a position like this without any real experience as a judge!
    This is ridiculous! We need a Protestant Judge to fill this position.
    This is not Israel. We do not need any more of their manipulation our our American Political Structure.
    They are already way over represented in their lobby of our country and their constant placement
    of their people into our political process in America.
    Enough is Enough! They have brought their haters down on us and our country
    that lead to 9/11. Now once again Our boys have to die for their Sins!

    June 29, 2010 at 10:48 pm | Report abuse | Reply
    • BG

      Hey Jack, try reading Justice Iceman's post (above) re: Rehnquist, Warren and Taft, et al. Migtht want to read a history book too; we went to war 70 years ago to put an end to racist Nazi Third Recih. Enough is enough, but comments like yours ensure that we will never forget.

      June 30, 2010 at 1:19 am | Report abuse |
    • all of america

      Don't forget who picked her, or sotomayor. Obama has an agenda ,that is to set up what he thinks is his kingdom , the U.S. .He wants to surround himself with people that thinks like he does.He is power hungry!

      July 1, 2010 at 11:41 pm | Report abuse |
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