Appearing more comfortable and poised than she did yesterday, Supreme Court nominee Elena Kagan Tuesday turned her Senate Judiciary Committee confirmation hearing into a law lecture of the sort that she performed so well and famously at Harvard Law School.
She told one senator after another that she would not "grade" past Supreme Court decisions. And of her own formative background, she noted that "You didn't slide by" in Mrs. Kagan's sixth-grade class, a reference to her mother, a teacher.
Kagan walked away from President Barack Obama's "empathy" standard of judging, but said the act of deciding cases is neither a "robotic" nor an "automatic enterprise." She explained to the panel her views on the intersection of law and politics. "My politics would be, must be, have to be, separate from my judging," Kagan said. "My political views are one thing," my legal views another. She told Sen. Herb Kohl (D-Wis.): "I will try to decide each case that comes before me as fairly as I can." She wants to be a Supreme Court justice, she said, because "it's an opportunity to serve this country, which fits with whatever talents I have." And when asked by Sen. Jon Kyl (R-Ariz.) if she believes the current court is a so-called "activist" one, Kagan replied: "I am not going to characterize (the) court. I hope to join it one day."
On the military recruitment controversy -- she is accused by Republicans of thwarting efforts by the Defense Department to recruit students from Harvard Law School -- she told ranking Republican Jeff Sessions (R-Ala.) that "military recruiters had access to Harvard students every single day while I was dean." When Sessions pressed her on the matter -- he accused her of actively working against the Pentagon -- she said: "I have always tried to convey my honor for the military," and then reminded him that recruitment during her tenure as dean actually rose. The senator didn't buy it, but he's already signaled he's unlikely to vote for Kagan anyway.
Sen. Orrin Hatch (R-Utah), who has not yet committed either way on confirmation, spent virtually his entire 30-minute opening round of questions asking Kagan about her views on the First Amendment, free speech, and the Supreme Court's notable Citizens Unitedcampaign financeruling earlier this year. Their dialogue was certainly not the "hollow" or "vapid" charade the nominee once called these sorts of confirmation hearings.
In fact, much of the morning session was substantive and dignified. There were many minutes of dizzying details about the issues presented in Citizens United before Hatch pushed the nominee to declare whether she thought the court got the case wrong when it decided to give corporations and labor unions more freedom to spend money on political advertising. Kagan said: "I argued Citizens United. I did believe that we had a strong case to make (for keeping spending restrictions in place) and I tried to make it to the best of my ability." Later, under questioning by Sen. Russ Feingold (D-Wis.), she conceded that it was unusual for the court to have unilaterally expanded the breadth of the case.
Sen. Dianne Feinstein (D-Calif.) also pushed the nominee on controversial issues. She asked Kagan if she recognized and agreed with the woman's health exception to abortion regulations -- the nominee said she did. She asked Kagan about the Court's recent Second Amendment firearms cases -- and the nominee said they were both "settled law." And she pushed Kagan to discuss her views on executive branch power over terror law issues. So far no one has asked Kagan about same-sex marriage, or affirmative action, or many other "moral" issues that once dominated Supreme Court confirmation hearings.
Kagan was clear about one thing. She very much would like to see the Supreme Court opened up to cameras. "It would be a great thing for the court and a great thing for the American people," she told Kohl, because the public would see that the justices are "so prepared, so smart, so thorough, so engaged."
She was also very clear in establishing herself as judicial and judicious -- precisely what her supporters had hoped she would do. More friendly than nominee Sonia Sotomayor in 2009, more polished than nominee Samuel Alito in 2006, it's no wonder so many legal insiders have suggested that Chief Justice John Roberts may have finally met his match on the court in Kagan. She essentially has to implode in order to ruin her chances of confirmation. And so far she hasn't come close.
Click play below to watch a Medill Washington video report on the second day of the Kagan confirmation hearing:
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