The Kagan Hearings: More Politics Than Provocation

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Supreme Court nominee Elena Kagan answers questions on the second day of her confirmation hearings on June 29, 2010

The biggest news out of the first day of questioning of Supreme Court nominee Elena Kagan was that there was no news. For the most part Kagan, who serves as Solicitor General, was affable and unruffled — even funny. Indeed, a transcript search found more than 60 bouts of laughter in her 8½ hours of testimony.

Laughter was practically the only thing that broke up an otherwise docile hearing attended by no protesters and less than half the number of press that Sonia Sotomayor saw at her confirmation hearings last year — though perhaps reporters were distracted by General David Petraeus down the hall or the abrupt reopening of the financial regulatory reform bill across the Hill. Even the last row of the guest section, usually filled by Supreme Court enthusiasts and activists who often line up overnight to get in, stood empty for much of the day.

Democrats were pretty much fawning in their adoration of the nominee, and a few Republicans, including Senator Lindsey Graham and John Cornyn, praised her conservative stances on the detention of detainees and their interrogation — issues the committee's Democrats noticeably ignored. Her GOP admirers were especially delighted when Kagan's long friendship with Miguel Estrada, President George W. Bush's nominee for the D.C. Court of Appeals who was filibustered by Democrats in 2003, came up during questioning. "Your stock just went up," Graham quipped when Kagan praised Estrada's qualifications, in her eyes, to sit on not only a federal court but the Supreme Court.

Rather than focus their fire on Kagan, many Senators on the panel chose to use their time on national television to retry controversial cases and wedge issues — a side effect of holding her confirmation hearings five months from the midterm elections and an exercise purely for the benefit of donors and supporters, since none of those issues were likely to impact her confirmation. Senator Orrin Hatch, a Utah Republican, spent nearly all his time getting Kagan to correct oft-repeated liberal exaggerations about the recent Citizens United case in which the Supreme Court struck down large parts of the McCain-Feingold campaign-finance bill. Senator Dianne Feinstein, a California Democrat, tried in vain to get Kagan to condemn two recent gun-control decisions panned by Democrats, Washington D.C. v. Heller and McDonald v. The City of Chicago. Senator Jon Kyl, an Arizona Republican, used most of his time fishing for Kagan's personal position on a two-year-old Arizona immigration law making it harder to hire illegal immigrants. Senator Ben Cardin, a Maryland Democrat, talked about the tragedy in the Gulf of Mexico and condemned the Supreme Court's decision on Exxon v. Baker limiting damages. And Senator Russ Feingold, a Wisconsin Democrat, asked about two hot-button issues that haven't even gone before the court: the controversial AIG bonuses and President Obama's czars. For the most part, Kagan said she couldn't comment on past or prospective cases, allowing the Senators to hog the C-SPAN cameras.

That's not to say that Kagan got off scot-free. Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, practically called her a liar in one of the only relatively heated exchanges of the day. Sessions disputed Kagan's account of why she briefly banned military recruiters from Harvard Law School's resources office when she was dean. Kagan argued that she was merely trying to reconcile the school's nondiscrimination policy with the Pentagon's "Don't ask, don't tell" policy, but Sessions was having none of it. "I'm just a little taken aback by the tone of your remarks, because it's unconnected to reality," Sessions said. "I know what happened at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to reverse Harvard's policy and deny those military recruiters equal access to campus until you were threatened by the United States government of loss of federal funds. This is what happened." Still, even Sessions refused to say if the issue would prompt him to filibuster her. And if he didn't succeed in tripping her up, the issue is still a lucrative one on both sides of the aisle.

What little time was spent trying to discern what kind of Justice Kagan might be yielded perhaps the most frank exchanges of the day. Asked about some of her political tendencies, for the most part Kagan said she was acting on behalf of Presidents Clinton or Obama or the Supreme Court, not on her own beliefs. She did concede that she's a lifelong Democrat who would describe her own personal leanings as progressive. Republicans practically cajoled her into admitting that she's partisan. "Elections have consequences. I would expect the President to nominate someone who shares his values," Senator Tom Coburn of Oklahoma said. "You've fought for a lot of causes in your life."

Kagan, however, refused to take the bait. "Senator Coburn, I don't disagree with you that judging requires judgment," Kagan quipped, prompting laughter in the room. "But that [political] hat has not been on for many years. I've had a 25-year career in law; of that time I spent four years in the Clinton White House. The major part of my legal career has been as a scholar and teacher of the law."

Kagan was also grilled on whether she would strictly interpret the Constitution, as conservative judges do, or if she believes it's a "living" document with "no fixed meaning," as Senator Chuck Schumer, a New York Democrat, asked. "I don't think the term [no fixed meaning] is apt, and I don't like what people associate with it," Kagan said. "They associate with it all kinds of loosey-goosey, anything-goes kind of interpretations."

She went on to say that some things in the Constitution are rigid, like preventing anyone under the age of 30 from serving in the Senate, while other parts are subject to interpretation, like the Fourth Amendment barring any unreasonable search and seizure. "The question is, What counts as an unreasonable search and seizure?" Kagan asked. The framers, she noted, didn't specify, and these days courts must figure out what's unreasonable, from bomb- and drug-sniffing dogs to heat detectors. "The Constitution is the Constitution, but it is applied to new facts as they come up and new circumstances as they come up," she said.

Almost humorously, Senator after Senator reminded Kagan of a 1995 paper she wrote in which she described Supreme Court confirmation hearings as "lessons in cynicism" and a "vapid hollow charade" because of nominees' opaqueness in the process. Kagan, at the time, had just left then Senator Joe Biden's staff and had worked on the 1993 confirmation hearings of Ruth Bader Ginsburg. On Tuesday, she admitted that she went too far in her criticisms and that as a nominee, she wouldn't be able to answer many of the questions posed of her. "I'll say one thing," Kagan said ruefully. "It just feels a lot different from here than it felt from back there."