June 29th, 2010
04:57 PM ET

What we've learned about Elena Kagan

After a long day of questioning by senators hoping to find out more about Solicitor General Elena Kagan, there's one thing they now know for sure: No matter how they try to get her to discuss her judicial philosophy, there's no hard answer. For Kagan, it's all on a case-by-case basis.

At least, that's the sense Kagan conveyed today over and over again when asked about her political views and how they might influence her role on the Supreme Court.

Asked about issues including abortion, military recruitment, "don't ask, don't tell," executive power and other hot-button issues, Kagan always asserted that the law was the law, precedent was binding, and that's how she'd plan on ruling if any of those issues fell before her if her nomination was confirmed. She often answered questions with phrases indicating she felt she would bring no bias to the bench.

"I think I will take this one case at a time," she said several times. Others times, it came in the form of "I will try to judge each case as it comes."

The remarks were ironic, some congressmen noted, especially for someone who had once before written that the nomination process had become somewhat of a farce with barely any substance. So, she was asked her own question that she said would be fair to ask any nominee: How she felt she might move the institution, politically. Kagan said she expected that she wouldn't, but was pressed further, saying it was a question she herself obviously thought was fair and important.

"It might be a fair question ..." Kagan said, her voice rising, then pausing before it trailed off. It was almost as if she wanted to answer, or couldn't say "but I won't answer it."

Day 2 of questioning: Guns, abortion, jokes

Senators tried several ways to find out where she would fall as a judge - because she has never sat on a judicial bench - asking about her views on other justices, the court's prior rulings and previous precedents. She did answer questions about a military recruitment issue and abortion, and about several other issues in roundabout ways. But she didn't waver much in her answers, though she tried often to invoke some humor in them.

"I would not want to characterize the current court in any way - I hope one day to join it," Kagan said at one point, drawing comical remarks from senators that she may have some politician in her yet.

The hearing also had its contentious moments, including one between Sen. Jeff Sessions and Kagan, regarding her role as a dean at Harvard University and military recruiters being allowed on campus. At one point, Sessions said he thought Kagan was "unconnected to reality" in how she was classifying the situation. The hearing also had a few moments of sparring among committee members: Sen. Orrin Hatch and Sen. Patrick Leahy got into a small debate when Leahy tried to tell his colleague to rephrase his questioning.

But like many other moments during the hearing, the tension was broken with some laughter.

"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.

And during a break in the questioning, when not everyone was back in time, Sen. Jon Kyl found a way to invoke some humor himself.

"General Kagan, you can see how important my colleagues think my questions are here," Kyl said, with Leahy, the committee's chairman, chiming in quickly that he was there.

Kagan offered a quick-witted response that perhaps couldn't be more ironic: "Or how important my answers are."

soundoff (315 Responses)
  1. Steve Martin

    It would make excellent Saturday Night Live material! 🙂

    June 29, 2010 at 7:16 pm | Report abuse |
  2. Barry Sax

    I am a retired Federal Administrative Judge and a member of the U.S. Supremee Court Bar. I am watching the confirmation hearings for Elena Kagan, as i did last year for Judge Sonia Sotomayor. Most of the Republican Senators on the Judicial Committee were and are southerners and strongly Conservative. In both hearings, they have asked similar questions and made similar accusations.

    I am most fascinated by Senator Sessions (R-Alabama), in great part because I am familiar with his past. I have seen the Senator’s name appear in print and on TV dozens of times in recent year by both conservative and nonconservative commenators. He is always referred to as “Jeff” Sessions. What is puzzling is that his full name is Jefferson Beauregard Sessions III. So, why the nickname? I have noticed that President Obama is sometimes referred to by his full name, Barak Hussein Obama, by conservative writers and commentators. That is his name and he has never indicated that he feels any shame or embarrassment because of his name. I suspect that it is used by the right to make him seem somehow un-American or out of the mainstream. Senator Sessions’ own website mentions his name only as Jeff Sessions. Out of dozens of references to him on the Internet, many from mainstream media sources also refer to him as Jeff. The only sources I found that cited his full name were Wikipedia, an unjuried on line encyclopedia, and the official US Senate website, which cites his full name as Jefferson Beauregard Session III. Is the Senator ashamed of his name or is at least concerned that it might do him some political damage, particularly outside the south?

    There is nothing wrong with the name Jefferson Beauregard Sessions. “Jefferson” Davis was the President of the Confederate States of America during the Civil War and was captured by Union troops while trying to flee the country after General Lee surrendered in the souring of 1865. He spent some time in prison before he was released. Pierre Toutaint “Beauregard” was the Confederate General who ordered southern troops to fire the opening shots of the Civil War on Fort Sumter in the spring of 1861. I lived many years below the Mason-Dixon Line and I know these names are looked upon warmly in states that seceded from the Union during the Civil War. On the other hand, this is generally not the case in states that fought to defend the Union and among Americans who had ancestors who fought and died during the Civil War or who are simply aware of the history of the struggle a century and a half ago.

    Is Senator Sessions sensitive to these issues? Back in 1986, Sessions was nominated for a U.S District Court judgeship by President Reagan. The nomination was killed by the Senate Judiciary Committee, which refused by a 9-9 vote to let his nomination come to the Senate floor for a vote. Sessions’ opponents accused him of "gross insensitivity” on racial issues. He allegedly made a variety of comments that opponents pointed to, when he jokingly said that the Ku Klux Klan was not so bad until he found out that some of them smoked marijuana. Sessions also allegedly referred to the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) as "un-American" and "Communist-inspired" because they "forced civil rights down the throats of people."

    At his hearing, Sessions said that the groups could be un-American when "they involve themselves in un-American positions" in foreign policy. His explanation was that he had been joking, but even his fellow Senator from Alabama, Howell Heflin, voted against him. Sessions countered by saying that the Senate on occasion had been insensitive to the rights and reputation of nominees.

    His record suggested a high level of hypocrisy in judging others with whom he disagrees but, this does not seem to have hurt him at home. After he was elected a Senator by Alabama voters, he joined the Senate Judiciary Committee, and he has stayed in the Senate long enough to make him ranking Republican member, by seniority rather than by merit. This is the nature of the man who has led the attacks on Sotomayor and Kagan. Is this really the way we want to select judicial nominess or to run our Congress. Surekly, we can do better.

    June 29, 2010 at 7:19 pm | Report abuse |
    • demogal

      You wrote a very well-thought-out and beautifully-phrased piece to say, basically, "Jeff Sessions is a hypocritical jerk." Thank you.

      June 29, 2010 at 7:29 pm | Report abuse |
    • jimmy

      it's nice to have someone with experience commenting on these hearings. Clearly Obama's middle name is used derisively, as a fear tactic to suggest that he is somehow in league with Islamic terrorists. Ann Coulter is famous for that.

      June 29, 2010 at 7:29 pm | Report abuse |
    • bama

      Thank you for the comment – It was a breathe of fresh air.

      June 29, 2010 at 11:22 pm | Report abuse |
  3. laurie

    So she probably pulled a few strings for Obama when she was Dean, got him admitted into Harvard. Now he is repaying her. Of course she has no experience, but it doesn't matter to our president. He's all show.

    June 29, 2010 at 7:20 pm | Report abuse |
    • jimmy

      Obama is all show? That he was helped into Harvard because he isn't qualified? Moronic at best, probably a racist to the core. I would suggest growing up.

      June 29, 2010 at 7:31 pm | Report abuse |
    • Chris

      Is that all the right has left...conspiracy theories?

      June 29, 2010 at 7:44 pm | Report abuse |
  4. Hawk in texas

    aaaaaafred, just where did you come up with those numbers. the far right part of the court are catholic. just think you said that 76% of america is either italian or catholic.. you need to get away from faux for awhile.

    June 29, 2010 at 7:21 pm | Report abuse |
  5. Hawk in texas

    Laurie. did any one tell you that you are a nut job?

    June 29, 2010 at 7:22 pm | Report abuse |
    • laurie

      Right, and someone who calls himself "Hawk in Texas" isn't a nut job.

      June 29, 2010 at 7:32 pm | Report abuse |
  6. Cohen

    I don't think we have enough Zionist in the administration, we really need her help. Ha Ha Ha

    June 29, 2010 at 7:23 pm | Report abuse |
    • evensteven

      And your name is "Cohen"?

      June 29, 2010 at 7:27 pm | Report abuse |
  7. demogal

    When Dems objected to the nomination of John Roberts, the standard Republican reply was, "George Bush was elected president, and that means he should get his choice for the Supreme Court." Think about that now that we have a Democrat in the White House. He was elected by the people; he gets to nominate the person he considers best for the job. I do agree with him on this one, as well as the his last S.C. pick.

    June 29, 2010 at 7:26 pm | Report abuse |
  8. Patriot1960

    The republicans are beyond help, to dig poor Justice Marshall up to try asnd crucify him is unforgivable. They have show how low they will slither and should be ashamed of themselves

    June 29, 2010 at 7:30 pm | Report abuse |
    • Surprised

      I am glad that you pointed out the bizarre role that Thurgood Marshall's name played in today's session. I've never seen such an obvious American hero so publicly demonized.

      I kept waiting for the Senators to drag Abraham Lincoln's name out and stomp all over it.

      June 30, 2010 at 12:02 am | Report abuse |
  9. Hawk in texas

    If all the republicans do not like her that means that she would make the finest member of the supreme court. and beauregard sessions is just sore because his beliefs got him what he deserved. he was not brought up for a senate vote for the supreme court because he was totally biased.

    June 29, 2010 at 7:30 pm | Report abuse |
  10. OARFNY

    Barry Sax.................I read your entire post and found it to be trivial and highly partisan. I assume you also were just terribly dismayed by the treatment Robert Bork received from the Judiciary Committe and the racism Clarence Thomas endured? If not you are hypocritical.

    June 29, 2010 at 7:33 pm | Report abuse |
  11. Chris

    It seems like a lot of people leaving comments know very little about Supreme Court justices and the confirmation process in general. First of all it is not a requirement to have been a judge to serve on the court. There have been many justices that were not judges prior to their nominations. Second Kagan is answering questions no differently than other nominees have in the past and no differently than she should answer the questions. She cannot come out and make a hypothetical ruling on a hypothetical case. It would introduce bias were she to be confirmed. It's also impossible to make a judgement about a case without all the facts and surely a hypothetical scenario lacks ANY real facts. This is just political theater where one side gets to ask question they know cannot be answered and the other side gets to claim the nominee is dodging important questions. It's nothing new. In fact it's pretty standard fare these days whether the party in power is Democrat or Republican.

    June 29, 2010 at 7:42 pm | Report abuse |
    • OARFNY

      A thoughtful, intelligent and non-judgmental comment! I agree with you, and some others, that Ms. Kagan has conducted herself appropriately and answered questions properly. The committee members, on both sides for example Sessions on the right and Cardin on the left, have been their usual non-professional and shameful selves.

      June 29, 2010 at 7:51 pm | Report abuse |
  12. Linda

    She is being honest, and I like that. If a person stands one way all the way for something, then they are completely nuts. Probably the reason our Government cannot get along. I make decisions based on a case by case basis. Abortion I say. Depends on the reason. Lethal Injection...depends on the case. I do that with everything, because not everything is how it appears. A person with common sense should always do that.

    June 29, 2010 at 7:42 pm | Report abuse |
  13. laurie

    aaaahhhh poor Jimmy. Do you really think Obama got into Harvard because of his intelligence and wonderful grades? Give me a break. Affirmative action my boy, affirmitive action.

    June 29, 2010 at 7:50 pm | Report abuse |
    • bama

      You got into what school?

      June 29, 2010 at 11:12 pm | Report abuse |
    • Surprised

      Hate Hate Hate

      June 30, 2010 at 12:04 am | Report abuse |
  14. Stephen

    The GOP strategy here was one dimensional. They came out and announced immediately that she's more interested in politics. Then they spend many hours a day asking her questions that attempt to elicit political answers. Only she is much more patient and probably smarter than they.

    June 29, 2010 at 7:50 pm | Report abuse |
  15. TKO

    " Thoughtless people like you are the reason that we're in the situation that we're in. " I wish we would just stop this kind of rhetoric–name calling is what is thoughtless.

    June 29, 2010 at 8:00 pm | Report abuse |
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