(July 1) -- The National Rifle Association today called on the Senate to reject the nomination of Elena Kagan to the Supreme Court, questioning her commitment to recent court affirmations of the Second Amendment despite Kagan's testimony this week that gun rights are a matter of "settled law."
The powerful gun lobby and shooting enthusiasts group also made clear that senators' votes on the Kagan nomination will affect NRA "candidate evaluations" in the coming election cycles -- an often powerful factor in states where gun rights play a big political role.
The NRA announcement came on the curtailed, final day of Senate Judiciary Committee hearings examining Kagan's nomination.
With most of the day devoted to the Senate's mourning of the late Robert Byrd, the committee squeezed 23 witnesses into less than four hours of testimony that didn't start until 4 p.m.
The hearing featured representatives from the American Bar Association who declared Kagan "well qualified" to be a justice -- its highest rating -- as well as a parade of Kagan backers and challengers.
The spectrum of witnesses ranged from Gregory Garre, a solicitor general under President George W. Bush who offered fervent support for the nominee, to Tony Perkins, president of the conservative Family Research Council, who accused Kagan of being against the U.S. military because it has "not bowed to the demands of the sexual counterculture."
But senators' attendance at the hearing was sparse, and both the testimony and questioning were brief, with confirmation of Kagan now expected by most in the majority-Democratic Senate.
Still, the NRA position could cost Kagan some votes, especially among Republicans who were considering a vote for Kagan despite a tendency this year for the party base to turn on Republican moderates.
The NRA pounced on Kagan's use of "settled law" to describe the recent high court decision binding states and local governments by the Second Amendment.
Though "settled law" refers to precedents a judge or justice wouldn't overturn simply because she or he disagrees with it, the NRA took issue with Kagan's description of gun rights as constitutional rights rather than what the group considers a "God-given right of self-defense."
That jibes with the questioning of Kagan by Sen. Charles Grassley and other Republicans this week who pressed Kagan on whether bearing arms should be considered a God-given right.
The NRA also assailed Kagan's work in the Clinton White House at a time when the president was trying to ban semiautomatic assault weapons, a ban the NRA and its allies in Congress were able to defeat.
Wednesday, June 30
'You Kind of Light Up a Room'
The confirmation hearings for Supreme Court nominee Elena Kagan aren't over yet, but it's hard to escape the impression that, however they'll vote, the members of the Senate Judiciary Committee have little else to consider.
And there was considerable optimism among Kagan supporters that she'll be confirmed.
Yes, there are 24 witnesses on the official list still to be heard. But they'll be squeezed into one more day of testimony, and even that won't start until Thursday at 4 p.m. ET -- the late Sen. Robert Byrd will be lying in state in the Senate until that time, and senators are scheduled to attend a memorial services for their longest-serving colleague the following day in West Virginia.
So when Kagan ended her own testimony after two long days of questioning before the committee and without any gaffes or surprise scandals to derail her nomination, there were plenty of smiles from the nominee, from Democrats and even from some Republicans.
"As it was said in the paper today, you kind of light up a room," Sen. Tom Coburn, the Oklahoma Republican, told Kagan after he finished grilling her over an abortion-policy-related memo she wrote in 1996 as an associate White House counsel in the Clinton administration.
Another Republican, John Cornyn of Texas, referred to her as "soon-to-be Justice Kagan" in front of reporters outside the hearing room.
And Republican Lindsey Graham, whose constitutional discussions and jokes with the nominee were among the most congenial exchanges of the hearings, finished with: "I wish you well and I know your family is proud of you and I think you've acquitted yourself very well for the last several days."
While most Republicans expressed what ranking member Jeff Sessions described as unease about how Kagan would rule on the likes of abortion, gun rights, limits on government power, the influence of foreign laws -- enough unease to justify voting against her -- they seemed politely resigned to see her on the bench come the first Monday in October.
And the most bitter questioning came from Democrat Arlen Specter, who said Kagan's refusal to discuss matters that could come before the court amounted to stonewalling. "You have followed the pattern which has been in vogue since" the Senate rejected nominee Robert Bork in 1987, he angrily charged.
But nearly all senators expressed respect for Kagan's fluency with the broad spectrum of legal issues that came up over the two days and a nearly unflappable grace that characterized most of her answers.
Thursday's witnesses will include members of the American Bar Association's Standing Committee on the Federal Judiciary, as well as supporters and those who oppose her views.
When Kagan asked jokingly if she could come back to attend, committee Chairman Patrick Leahy suggested that unless she's a "glutton for punishment" she might prefer to tune in from home.
"You know," Kagan answered to considerable laughter, "I think I won't watch."
Stumbling, Briefly, on Abortion
Abortion, once among the most controversial of issues before the Supreme Court and thus confirmation hearings for potential justices, has barely come up as the Senate Judiciary Committee examined Elena Kagan.
As the second round of senators' questioning of nominee Kagan gathered steam, Republican Sen. Orrin Hatch asked about a memo Kagan wrote as associate White House counsel in 1996. At the time, President Bill Clinton was considering the issue of so-called partial-birth abortions -- the label abortion opponents use to describe the late-term procedure referred to medically as intact dilation and extraction.
Hatch specifically wanted to know why Kagan described language in a draft statement from the American College of Obstetricians and Gynecologists as a "disaster." An ACOG panel was ready to say it couldn't identify circumstances when the procedure would be the only option to save the life or preserve the health of a women, Hatch noted. And Clinton was preparing to support a ban on the procedure only as long as there were exceptions to protect the health or lives of women.
But there were at least two documents on the subject among the reams of papers from Kagan's career made available by the committee. And she seemed confused about which one Hatch meant, leading to a line bound to make it into media soundbites on the hearing.
Was Kagan interfering in scientific discussion of the issue, Hatch asked? That's not what happened, she answered. Did you write the memo, he asked? Pause. "The document is in my handwriting," Kagan haltingly answered.
Yet it was a typewritten memo at issue, and Kagan quickly recovered and said the "disaster" would be if ACOG didn't include mention of the group's additional view that the procedure could be the most medically appropriate in some circumstances. Kagan added that there was no way she "would have or could have intervened" with ACOG to change its medical views.
"I'm troubled by it even though I care a great deal for you and respect you," Hatch said.
But any stumble by Kagan may have been offset by Chairman Patrick Leahy, who quickly put into the record a letter voicing "strong support" for the nominee from Michael McConnell, a former federal appellate judge appointed by President George W. Bush and current law professor at Stanford who's also a fervent opponent of Roe vs. Wade.
McConnell, Leahy said, praised Kagan's bipartisanship and support for positions associated with conservatives as well as her "fidelity to legal principles" even when that means crossing her ideological allies.
"That's high praise indeed," Hatch conceded.
Sifting Through Law and Politics
Can politics be removed from the law?
If there's a theme emerging over more than two days of confirmation hearings for Supreme Court nominee Elena Kagan, it seems to be senators' effort to either nail down how the solicitor general's political leanings would influence her as a justice or reassure her that you can't separate a justice from the political system that puts her or him on the bench.
But Democrat Sheldon Whitehouse led off Day 3 of the Judiciary Committee's hearings by going a step beyond Kagan herself.
Noting that a history of the high court's often unanimous or broad-majority decisions has in recent years evolved into the 5-4 rulings that dominate the court now, Whitehouse on Wednesday wanted to know whether Kagan thought the justices should work together more. Would it be better, he asked, if justices appointed by one party didn't most often side against justices appointed by the other?
That's a "hard question," Kagan answered.
"Every judge or every justice has to do what he or she thinks what's right in the law. You wouldn't want people to trade with each other," she said. "But on the other hand, there's no question I think the court is served best and our country is served best when people trust the court as an entirely nonpolitical body."
That line of questioning was likely to be echoed as senators moved on with their second day of questioning the nominee.
Most senators of the 19-member committee got their first crack at Kagan during a marathon 10-hour series of sessions on Tuesday. Committee Chairman Patrick Leahy said he hoped to finish her testimony on Wednesday, leaving Thursday for the outside witnesses to be presented by both sides. That would leave committee members free to attend the Friday memorial service of West Virginia Sen. Robert Byrd, who passed away on Monday.
Tuesday, June 29
Gun Rights to the Fore
Is the right to bear arms an inalienable right?
The question seemed to catch Supreme Court nominee Elena Kagan by surprise, prompting a lingering pause in her fluent responses to questions about constitutional law and the high court's role in the U.S. political system.
Chuck Grassley, Iowa Republican and Kagan's latest inquisitor on the Senate Judiciary Committee, wanted to know whether the Second Amendment right to own a gun -- a constitutional right reaffirmed Monday in one of the court's most headline-making decisions of the year -- existed even before the Constitution.
Earlier on her second day of confirmation hearings, Kagan declared Monday's ruling in McDonald vs. Chicago and another recent Second Amendment ruling known as Heller to be "settled law" -- precedents that future courts must respect.
A short time later, Kagan was asked again by Democratic Sen. Dianne Feinstein, who noted that she became mayor of San Francisco as a "product of assassination," and Kagan again called McDonald and Heller "binding precedent."
But Grassley went further. He wanted to know, was it a fundamental right? Was it, he asked, the kind of God-endowed right whose importance was so great it was in the minds of the Founding Fathers when they declared independence?
It was a rare moment in the hearings when Kagan looked puzzled, and said she never really considered that question before.
Grassley pressed again. And again. Do guns represent a fundamental right?
Finally Kagan said she would apply stare decisis
, the principal of respecting precedent, to McDonald and Heller as she would to any case.
And Grassley moved on.
Republican Accuses Kagan of Treating Troops as 'Second-Class Citizens'
The accusation was stark: Supreme Court nominee Elena Kagan treated as "second-class citizens" soldiers who had just returned from Iraq, "dutiful men and women who put their lives on the line," only because they were trying to recruit at Harvard Law School during a time when the Pentagon's "don't ask, don't tell" policy violated school rules.
That was the thrust of questioning from Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, during his half-hour crack at Kagan on day two of her confirmation hearings. And both nominee and Senate inquisitor did little else but spar over Kagan's decision on recruitment and her response to the so-called Solomon amendment, which threatened to withhold federal funds from schools that impeded military recruitment.
"We never suggested that any members of the military should be criticized for this," Kagan said in response to Sessions' accusation. All Harvard tried to do was ensure protection for gay and lesbian students who wanted to serve their country, she said.
"The military in all times of my deanship had full access. Military recruiting didn't go down, it went up. It went up because we ensured they had access to campus, because I spoke about how important it was," and because veteran groups spoke to Harvard law students about the importance of serving their country, Kagan said.
Starting With Softballs
Day two of Elena Kagan's confirmation hearings features a half hour of questioning for the Supreme Court nominee from each of the Senate Judiciary Committee's 12 Democrats and seven Republicans.
Chairman Patrick Leahy's opening salvo was an unabashed series of softballs aimed at allowing Kagan to pre-emptively tackle problematic issues sure to be brought up when the Republicans get their chance.
On her praise for the late Justice Thurgood Marshall's critique of the Constitution as "defective" -- the subject of fiery criticism from the Republican National Committee -- she reminded senators that the document initially allowed slavery in the United States.
On her expressed view that the the Constitution is a living document, open to interpretation of the words written two centuries ago, Kagan offered praise for the founding fathers and their concern for "posterity" by providing a framework that would last through history -- and that this doesn't mean judges are legislating from the bench, as some Republicans argue.
She noted that the Constitution has specific rules, like the minimum age requirement of 30 years for U.S. senators, but leaves open to interpretation the meaning, for example, of the Fourth Amendment's prohibition of "unreasonable search and seizure." The founders didn't imagine the use of bomb-sniffing dogs, heat-detecting devices or computers, Kagan said, but the amendment can apply to those techniques.
And asked about her 1995 book review in which Kagan argued Supreme Court nominees should be more informative at confirmation hearings, Kagan noted that her words have been read back to her "many times" since her nomination, and that she thinks her basic points were right. But now, Kagan said, she thinks the piece might have been skewed too much toward providing testimony that could inappropriately refer to future decisions by the court.
"It wouldn't be appropriate for me to talk about what I think about past cases, sort of grade cases, because those cases might again come before the court," she said.
Next up: Questions from ranking Republican Jeff Sessions.
Monday, June 28
A Child of the 'American Dream'
If the main policy side of Elena Kagan's brief opening statement was a nod toward Republicans' concerns about judicial restraint, the personal side was all about the unrestrained possibilities of growing up American.
"My parents lived the American dream," the Supreme Court nominee told the Senate Judiciary Committee. "They grew up in immigrant communities; my mother didn't speak a word of English until she went to school. But she became a legendary teacher and my father a valued lawyer. And they taught me and my two brothers, both high school teachers, that this is the greatest of all countries, because of the freedoms and opportunities it offers its people. I know that they would have felt that today, and I pray that they would have been proud of what they did in raising me and my brothers."
A few minutes later, at the end of her statement, Kagan tied her family's fate to the legacy of the court she hopes to soon join as an associate justice.
"My grandparents came to this country in search of a freer and better life for themselves and their families. They wanted to escape bigotry and oppression -- to worship as they pleased and work as hard as they were able," Kagan said.
"They found in this country -- and they passed on to their children and their children's children -- the blessings of liberty," she added. "Those blessings are rooted in this country's Constitution and its historic commitment to the rule of law. I know that to sit on our nation's highest court is to be a trustee of that inheritance. And if I have the honor to be confirmed, I will do all I can to help preserve it for future generations."
Republicans Lay Out Line of Attack
Most Republicans on the Senate Judiciary Committee this afternoon were quick to set out the coming line of attack against Supreme Court nominee Elena Kagan.
In opening statements before the solicitor general herself had a chance to testify:
The committee's ranking Republican, Jeff Sessions of Alabama, said an essay Kagan wrote in college seemed to "bemoan socialism's demise" and that her lack of experience as a judge was a problem. Kagan, he said, "has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute for being in the harness of the law, handling real cases over a period of years."
Republican John Kyle of Arizona said memos written during Kagan's clerkship under Justice Thurgood Marshall suggest she'd make "results-oriented" decisions instead of rulings based on the law, and sought assurances that she wouldn't vote to strike down Arizona's controversial immigration statutes.
But Sen. Lindsey Graham, the South Carolina Republican and only minority member of the committee to vote for confirmation of previous Obama nominee Sonia Sotomayor, offered a more balanced view. He praised some of Kagan's work as solicitor general, said she will probably meet "the qualification test" and suggested she might even have some "fun" at the confirmation hearings. He reiterated his criticism of her decision as Harvard Law School dean to halt military recruitment there because of the "don't ask, don't tell" rules, but said it was OK that Kagan has "a little bit of this, a little bit of that."
Democrats were mostly effusive in their praise -- Charles Schumer of New York called Kagan "straight out of central casting for this job" -- and quick to defend her from Republican critics.
Said committee Chairman Patrick Leahy: "There is no basis to question her integrity, and no one should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career, lacks independence."
Meanwhile, Republican Scott Brown, testifying as a senator from Kagan's home state of Massachusetts charged with the traditional duty of helping to introduce her, also praised the nominee's accomplishments. But he offered no hint of how he will vote, saying only that he, too, looks forward to hearing her answers to the committee's questions.
A Pre-emptive Pledge of 'Restraint'
Republicans have made clear they'll use confirmation hearings to question whether Supreme Court nominee Elena Kagan is committed to the notion of judicial restraint. And that's an issue President Barack Obama's candidate for associate justice intended to confront in her opening statement before the Senate Judiciary Committee.
In excerpts of her testimony released by the White House, the current solicitor general, former Clinton White House lawyer and former Harvard Law School dean declares that "what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle and restraint."
"The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one -- properly deferential to the decisions of the American people and their elected representatives," Kagan planned to say. " What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests.
"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," she intended to add. "But the court must also recognize the limits on itself and respect the choices made by the American people."
Kagan was also set to promise to continue the legacy of retiring Associate Justice John Paul Stevens and his expressed respect for the value of "understanding before disagreeing."
"I will listen hard, to every party before the Court and to each of my colleagues," she planned to say. "I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law."
Sunday, June 27
Five Questions That Will Shape the Hearings
Elena Kagan goes before the Senate Judiciary Committee on Monday with as few predictably hot confirmation issues as any Supreme Court nominee in recent history.
Despite the reams of political memos, legal briefs, policy papers and speech transcripts provided to the committee by the Obama administration, no past gaffe or assertion or opinion has generated even the seeds of the kind of controversy that most nominees know they'll have to explain. As the rare nominee who never served as a judge, Kagan has made no rulings that senators can use to question her future constitutional criteria. Though the solicitor general for President Barack Obama and a White House lawyer for President Bill Clinton, Kagan brings no particular piece of advocacy that makes enough headlines to be a dominant theme of the hearings.
But Supreme Court confirmation processes are enough of a Washington set piece to have an idea of where the fault lines might begin to shake. One can at least speculate about the shape of contentions that may get traction with the news media, the political base of Democrats or Republicans and with the senators themselves as they consider the potential lifetime appointment to the highest court in the land.
So here are five questions whose answers will likely define events in the week ahead and the votes that will decide Kagan's fate.
How will Kagan sell herself to the American people?
Kagan will take the witness table microphone in the Judiciary Committee chamber on Monday afternoon as one of the least known nominees in recent history.
For a recent Pew poll
, 33 percent of respondents said they support her nomination, 25 percent opposed it, and 42 percent said they either didn't know or declined to answer. Her nomination has also received relatively little media coverage amid the BP oil spill and other news. In the week after her May 10 nomination, reports on Kagan accounted for 13 percent of the news hole, according to Pew. But Kagan stories were only 1 percent of news coverage in each week that followed.
So her opening statement, the life and career stories she tells and the way Kagan presents herself could go along way toward filling in the blanks with many Americans.
What can Brown do for you?
After the opening statements of senators on the committee, there will be only three witnesses on Monday: Kagan, and the two senators from her home state of Massachusetts.
One, Democrat John Kerry, will most likely present a fervent case for confirmation. But what about Scott Brown, the Republican whose victory in a special election in January after Teddy Kennedy's death cost the Democrats their supermajority?
Brown, whose short time in the Senate has included cooperation with Democrats, and who hails from an unabashedly blue state, hasn't said how he'll vote on Kagan. Following her nomination, Brown said he looked forward to reviewing Kagan's qualifications and was keeping an open mind -- pretty tame remarks compared to comments from some fellow Republicans. After meeting privately with the nominee a few days later, Brown said he doesn't worry that her judicial philosophy could hurt the military, a concern expressed by others in his party.
As an at least sympathetic Republican, Brown could set the tenor of the hearings. A rosy point of view from the potentially 60th vote for confirmation would be more than welcomed by the White House. Skepticism from Brown would suggest Kagan has a rocky week in front of her.
What about the military?
A quarter of the witnesses summoned to testify about Kagan by Republicans are current or former military officers -- a sign of how much the committee's minority members plan to ask about her decision while dean of Harvard Law School to restrict military recruiting there.
That decision had to do with a clash between the university's policies and the Pentagon's "don't ask, don't tell" rules. But military matters, at a time when the nation remains at war in Afghanistan and Iraq and still struggles with how to prosecute the global fight against terrorism, were bound be an important point of discussion for any Supreme Court nominee.
For Kagan, her support for and relationship with the military will be one of the key stories both parties will try to define.
What about the other nomination?
Obama's decision last week to accept the resignation of Gen. Stanley McChrystal as commander of U.S. forces in Afghanistan and replace him with Gen. David Petraeus means the Kagan show will have unprecedented competition for a Supreme Court confirmation hearing, especially one that takes place in the summer.
Kagan may have the limelight on Monday. But on Tuesday, the Senate Armed Services Committee will consider the appointment of Petraeus, currently leader of the U.S. Central Command, and television coverage may favor the latter.
Petraeus has considerable bipartisan backing that makes his confirmation to the post all but a lock. But the administration's Afghan policy remains a point of contention, assailed by some on the right, as well as some on the left. The general's confirmation hearing is sure to feature arguments from all sides.
The Senate this week will also have to focus on reform of financial regulation, especially once the House-Senate conference committee's final draft of the legislation -- approved early Friday morning -- gets a vote in the House.
If attention starts to drift elsewhere, and if Kagan opponents score few lasting points early in the process, the political importance of the hearing could diminish, and with it, participants' fervor.
How can the past be used for the future?
Barring a Kagan surprise controversial enough to derail the nomination, the main goal of both Republicans and Democrats will be using the confirmation process to help define the other party ahead of the midterm elections in November.
For Republicans, that may mean focusing on Kagan's time in the Clinton White House to bring up any derisive issue she discussed as an associate White House counsel. Expect to hear Clinton mentioned more than any other president, probably including Obama, and echoes of Senate Republican leader Mitch McConnell
's charge last week that Kagan was a "political operative."
From Democrats, expect to hear a lot of references to the legacy of retiring Associate Justice John Paul Stevens, and perhaps even more about his current colleagues on the bench who will continue to make up a conservative majority of justices even if Kagan is confirmed.