Litigation

Kagan Emerges from Grilling ?Relatively Unscathed?

By Peter Hardin

Supreme Court nominee Elena Kagan has steered through a barrage of Republican questioning at her confirmation hearings, and now she gets a break.

The U.S. solicitor general and former Harvard Law School dean completed her answering of senators’ questions on Wednesday, as Republicans on the Senate Judiciary Committee pressed her on social issues and tried to bump her off stride, unsuccessfully, according to a New York Times article.

Her confirmation appeared all but certain, and the second ranking Senate Republican, Jon Kyl of Arizona, judged it “highly improbably” that his party would filibuster her nomination.

?She has been, in my view, a witness who has manifested a deep knowledge of the law, and she?s certainly very adept at describing what she thinks about the law,? Kyl said. ?By the same token, I think she?s been very adept at avoiding very specific questions that could result in criticism of her point of view.?

Sen. Patrick Leahy, D-Vermont and the Judiciary Committee chairman, told National Public Radio, “Maybe some have disagreed with her answers, but I think she has been more forthcoming than certainly any nominee that I can recall since I’ve been in the Senate.”

Despite a cautious approach, Kagan did not satisfy all her interrogators. Sen. Jeff Sessions of Alabama, the panel’s senior Republican, said he was dissatisfied with answers she gave about her time at Harvard, where she spoke out forcefully against the military’s “don’t ask, don’t tell” policy.

And Republican Sen. Tom Coburn of Oklahoma said, according to the Los Angeles Times, “I think we’ve learned a couple of things…. No. 1 is precedent trumps original intent. That is very worrisome for a Supreme Court. What that says is you discount what is in the Constitution, and the learned men of today have more wisdom and more knowledge than what our founders did.”

Nonetheless, her performance was successful enough that another Los Angeles Times article depicted as a “rare misstep” her response when Coburn asked whether the government could pass a law requiring Americans to eat fruits and vegetables. “It sounds like a dumb law,” she answered. Then, after a pause, she gave a more serious legal analysis.

“Her equivocation fit ideally with the narrative Republicans are trying to fashion during these hearings ? a story of a federal government out of control and a Congress running amok,” the newspaper reported, suggesting a better answer for Coburn would have been, “Of course it can’t.”

Overall, however, Kagan’s performance was likened by one analyst to that of Chief Justice John Roberts Jr. at his own confirmation hearing. Wrote Bill Mears of CNN, “Kagan’s candid but cautious approach in three days of hearings looks like it came out of the playbook Roberts used when he went before senators in 2005. She concluded her testimony Wednesday relatively unscathed.”

A New York Times editorial urged her confirmation, saying Kagan “could act as an important brake on the current Supreme Court?s alarming tendency to bulldoze through decades of settled precedents.”

A Washington Times editorial urged the Senate reject her nomination, saying Kagan “has shown herself to be an apologist not just for legalized abortion, but for legalized partial-birth abortion–a gruesome form of infanticide.”

You can learn background about Kagan and her nomination from Gavel Grab and Justice at Stake?s ?Replacing Justice Stevens? page, and you can track her confirmation hearings by clicking on Justice at Stake?s Twitter page.

Full post as published by The Gavel on July 01, 2010 (boomark / email).