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. Terry

    Don't believe the media baloney that Kagan is a "moderate liberal." She isn't. But she wants this job so bad, she is willing to say ABSOLUTELY ANYTHING at this point.

    June 30, 2010 at 12:15 am | Report abuse |
    • wcl

      You are right Terry. She reminds me of poor Hillary who would have said just about anything to get the job!

      Didn't work.

      A bigger hypocrite got the job....

      June 30, 2010 at 1:27 am | Report abuse |
  2. Paspat

    Why should we care?? What kind of Americans are you. We should care WHO is sitting on the Supreme Court!!
    That is what being an American is all about!! We should care who is in Washington!! We should care who is in the White House. We should care who is in charge of interpreting our laws. Good Grief- we should care about America!!

    June 30, 2010 at 12:20 am | Report abuse |
    • sara

      Thank you – if more people cared, maybe we would get somewhere.

      June 30, 2010 at 8:12 am | Report abuse |
  3. jcthinker

    What's this "we" sh_t white man?

    June 30, 2010 at 12:28 am | Report abuse |
    • beatley

      jcthinker
      You should care but you sound like a libtard racist. You know the type...
      idiots who say" the police acted stupily"before knowing any facts.

      June 30, 2010 at 2:21 am | Report abuse |
  4. XWngLady

    All Judges with considerable experience, current or former Supreme Court justices and/or their personal aides, former Solicitors General, Harvard Law school graduates and former Deans, and objective Senate Judicial Committee members that are on this blog, please render your opinion of whether you think Elena Kagan is qualified or not to be a Supreme Court Justice…..Everyone else, SHUT IT UP for you know NOT of what you speak! I want to hear whether she’s qualified or not from someone who actually knows what they are talking about and who doesn’t have a political agenda (like wanting the President to fail) or is just spitting out talking points from their political parties. It doesn’t take a rocket scientist to see that Kagan is an extraordinary legal mind (even the Republicans aren’t disputing that)….unless someone knows of some deep dark skeleton that she has in the closet, then I say confirm her already and quit wasting everyone’s time with the unnecessary political grandstanding.

    June 30, 2010 at 12:46 am | Report abuse |
  5. Steve6167

    Conservatives grumpy? Tell me something I don't know. Their DNA is bitter.

    June 30, 2010 at 1:32 am | Report abuse |
  6. Johnny Mo

    I think everyone in the country who has a brain knows why she was nominated and what she is doing. Obama obviously thinks she will be a reliable liberal because he knows her and she has been in the past. The key is that she has no record, thus nothing to get her in trouble. And, no she is saying nothing so as not to get in trouble... probably because she has been coached, even though she knows better because she has said as much in the past.

    The sad thing is what this says about our nomination process. Apparently we as a nation would rather have an empty suit than someone who has a judicial philosophy that they are willing to defend. And, heaven forbid that anyone should become a judge that we disagree with about something important. This charade began when Bork was borked and it has simply gotten worse.

    I'd rather have a judge who I disagree with who is willing to think and articulate with some guts than some sorry Harvard politician who excells at saying nothing that might get herself in trouble.

    June 30, 2010 at 2:23 am | Report abuse |
    • Gorgegirl

      Roberts told the committee the answers they wanted to hear and then became the most activist judge in love with corporations of all time.
      So, there you go. Previous experience and what they say means zero.

      June 30, 2010 at 3:33 am | Report abuse |
  7. steve4775

    Blah

    June 30, 2010 at 2:42 am | Report abuse |
  8. Gorgegirl

    I liked Kagan's response to Senator Lindsey Graham's question: "where were you on Christmas" thinking he meant the Christmas bomber incident. Her response "like most Jewish people – I suppose I was out eating Chinese food".
    It's great to see a sense of humor on the court. Alito I think has a sense of humor as well. And, I like the idea that Kagan would like to see the court televised.

    June 30, 2010 at 3:31 am | Report abuse |
  9. Gorgegirl

    If there is one thing I have noticed from the Republicans on the Judicial committee, it is their constant distain for the former Justice Thurgood Marshall. They are bashing him while asking Kagan questions because she was Marshall's clerk. But what they are really doing is looking bad in the eyes of many Americans who recall Justice Marshall as the first black justice with fondness.
    Keep it up Republicans. It makes you look like the racists you are.

    June 30, 2010 at 4:11 am | Report abuse |
  10. Govt_Issue

    Can someone please tell me WHY it's not a requirement to have served on the bench to be on the Supreme Court? I think its scary for both sides of the aisle. You really dont know how this person is going to respond to a case either way. Their is no precedent for her decisions. I absolutely think that Kagan is smart enough for the job....I am also concerned that she has so many political ties. She has spent most of her time in Academics and Politics, not ruling on cases. The military recruiting thing bothers me. She says she allowed access to the military, but the LAW states they get the same access as civilian recruiters, which she did NOT allow. The tap dancing she did around some tough questions bother me. I just wish republicans would quit throwing arrows and democrats would quit throwing softballs.
    How about some straight answers to some striaght questions. She will never have to fully explain herself again, so its now or never.

    June 30, 2010 at 4:46 am | Report abuse |
    • Captain Nemo

      The reality is that presidents can get very burned by their own nominees. In just one example, Eisenhower was truly ticked off with a lot of what Earl Warren did.

      June 30, 2010 at 6:09 am | Report abuse |
    • Captain Nemo

      In another example, every justice Nixon put on the court voted against him in the Watergate tapes case (United States v Nixon).

      June 30, 2010 at 6:12 am | Report abuse |
  11. regertz

    What disturbed me about Sen. Sessions was one remark he made to Kagan asking her if she supported Thurgood Marshall's position that the law should take into consideration the difference in power between the average or disadvantaged citizen vs the wealthy and powerful, including the corporation as citizen. Sessions, to my shock, took the view the law should not try to balance that difference, or even take it into consideration, which to me is a hideous perversion of judicial impartiality and an open door to oligarchy or worse. A very troubling reflection of the position of some in the Senate "club of the wealthy"...I mean how can any average citizen fight a travesty of justice if he or she is stacked equally against a guy who can draw on the best legal minds, propaganda and public relations, etc. Even worse, take on a corporation like Enron or BP doing wrong.

    Is this the position a US Senator should take? Scary to me...

    June 30, 2010 at 6:40 am | Report abuse |
    • Captain Nemo

      Remember, this version of the Supreme Court recently decided that a corporation has all the rights of an individual. That's why we need people with a different viewpoint on our highest bench. If ExxonMobil or Halliburton can give as much money as they want to a politician, how do individuals have a chance at equal influence?

      To paraphrase Dickens, "If the law supposes that the law is an ass."

      June 30, 2010 at 7:23 am | Report abuse |
    • Captain Nemo

      This court also expanded eminent domain to allow governments to expropriate private property for economic reasons, not just "public use". Why the Right wasn't apoplectic about that is beyond me...

      Kelo v. City of New London 2005

      June 30, 2010 at 7:27 am | Report abuse |
  12. coffeebean02

    Read it and weep...Obama has the RIGHT to nominate who he pleases...then they have to "pass the muster". All Presidents have had that right...and now it's OUR turn to start shaping the law...I would LOVE to see a more liberal Supreme Court...Gays would be given equal protection and rights...Fresh air.

    June 30, 2010 at 7:06 am | Report abuse |
  13. truthfulster

    I don't think a lot of you see how important this is, if this person gets confirmed she will be making SUPREME decisions for this country FOR THE REST OF HER LIFE. That will be 30years in a position that could ultimately be more powerful then the president if another liberal besides this one gets confirmed. Please don't write we don't know if she's liberal. If you think Obama would select anyone but a liberal, socialist your IGNORANT. This is the see-saw we have been on since the "BORK" selection by Reagan. Liberal presidents select liberals and conservative presidents select the best choice. That's more info then they'll get out of Kagan.

    June 30, 2010 at 7:42 am | Report abuse |
  14. JoeDon

    This woman has never judged a case. What in God's name qualifies her to be a Supreme Court justice, other than the fact that she the POLITICAL choice of the Community Organizer?

    June 30, 2010 at 7:46 am | Report abuse |
  15. John

    Poor Jeff (Sessions), had a hard time dealing with the smart little Jewish woman who wouldn't back down from him. MAN UP Jeff!!!

    June 30, 2010 at 8:12 am | Report abuse |
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