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Wednesday Kagan round-up

The news media is awash in coverage of General Kagan’s confirmation hearings. Kagan spoke with Senators for almost nine hours yesterday on a wide range of contentious topics. As Nina Totenberg of NPR reports, “the main controversy of the day was Kagan’s policy on military recruiting at Harvard.” The WSJ Law Blog’s Ashby Jones reports that Kagan had a “[t]esty” exchange with Senator Jeff Sessions regarding that policy. During the exchange, Kagan argued that “[t]the military had full access to [Harvard] students at all times.” Sessions declared the tone of her remarks to be “unconnected to reality.” The Christian Science Monitor, Bloomberg, the LA Times, the AP (via the Chicago Tribune), JURIST, USA Today, and NPR all have coverage. At Bench Memos, Gary Marx and Robert Alt suggest that Kagan was being “disingenuous”—at best—during the conversation. NPR’s Liz Halloran reports that Sessions later “suggested to reporters…that the nominee might be lying under oath.”

Kagan’s willingness to answer questions has itself been an issue. In 1995, Kagan wrote a book review suggesting that nominees be forthright during confirmation hearings. The Wall Street Journal Law Blog’s Nathan Koppel reports that Kagan distanced herself from the article during yesterday’s hearings. David Friedman of The Ninth Justice and the New York Times’ Charlie Savage and Sheryl Gay Stolberg echo that conclusion, while Cato@Liberty’s Ilya Shapiro adds that “Kagan’s attempts to walk away from her [article] are simply unconvincing.” The Chicago Tribune notes that Senator Tom Coburn, citing topics around which he believed Kagan was maneuvering, suggested that the nominee should perhaps be on Dancing with the Stars. The Chicago Tribune’s Jonah Goldberg and Howard M. Wasserman (at ACSBlog)  both recently expressed concern that the hearings would be a “charade.”

Many commentators have suggested reforms to the hearings process. At Forbes, Dan Gerstein proposes his solution: a bipartisan agreement to “oppose any nominee who refuses to answer appropriate questions about their judicial qualifications and philosophy.”  At AOL News, SCOTUSblog’s Adam Chandler suggests that Senators refocus their questions to discover the types of cases that a nominee, if confirmed, would vote for the Court to hear. Those votes, he argues, have a “terrific consequence.” At Bench Memos, Bradley C.S. Watson contends that current hearings bear “little resemblance” to hearings that took place before the 1980s, and that the Court is now “consummately political.” To illustrate this politicization, he argues Senators should ask nominees to state the holding and legal reasoning in cases that have “inflamed the culture wars.” Also at Bench Memos, Hadley Arkes contends that legislators should ask Kagan to explain the Court’s reasoning in certain cases, which “would offer some sense of how [Kagan] herself would reason about these puzzles.”

Despite her maneuvering, Kagan did strongly suggest that she would support cameras in the courtroom. Although careful to stress that some of the current Justices might change her mind, she stated plainly that such cameras “would be a great thing for the Court and…a great thing for the American people.” That comment, the WSJ Law Blog’s Nathan Koppel argues, indicates that Kagan is being more open than Sotomayor was during her own recent confirmation hearings. Appropriately, C-SPAN has made available a video recording of Kagan’s comment.

Other video clips are also attracting attention, including one in which Senator Coburn asks Kagan whether she would uphold, as consistent with the Commerce Clause, a law requiring Americans to eat three fruits and vegetables each day. At Althouse, Ann Althouse features one popular clip of the exchange—which she believes is taken out of context. Bench Memo’s Ed Whelan provides some of that context, and discusses more of Coburn’s questions.

But while few contend that Kagan is speaking too freely as a nominee, yesterday’s questioning revealed a concern that she might be less restrained as a Justice. Again at Bench Memos, Robert Alt remarks on Kagan’s use of the phrase “thing of glory” to refer the vision of the Court held by Justice Marshall, for whom she clerked. Senator Sessions specifically criticized Justice Marshall as a “well-known liberal activist judge.” ACSBlog reports that those sorts of comments have prompted a response from the NAACP, which calls the statements “astonishing.” NPR’s Ari Shapiro says the attack strategy may backfire, while the AP (via the Chicago Tribune) points out that Kagan, unlike Marshall, describes the death penalty as “established law.”

Concerns about Kagan’s willingness to defer to precedent have been raised in a number of different issue areas, such as campaign finance reform and the right to keep and bear arms. A discussion of those or other issue areas is available from the AP (via the Chicago Tribune), NPR, and  Appellate Daily. Jonathan Adler at the Volokh Conspiracy notes Kagan’s remark that, rather than empathetic, judging is “law all the way down.”

The issue of judicial restraint has been raised more broadly surrounding Kagan’s confirmation. Barry Friedman at Yahoo! News and the ACSBlog both discuss Democrats’ recent attempts to characterize the Roberts Court as unduly activist. At the New Republic, Jeffrey Rosen writes that Kagan’s nomination to the seat once occupied by Justice Brandeis “comes at a time when progressives are rediscovering the virtues of judicial restraint.” Finally, David Kopel argues in the Washington Times that Justice Sotomayor’s recent dissent in McDonald v. City of Chicago contradicts statements that she made during her confirmation hearings last year.

Fortunately, the hearings were not all business. The Associated Press recaps Kagan’s many witticisms during the day, highlighting her quip in response to Senator Lindsey Graham’s question about her whereabouts last Christmas Day: “You know, like all Jews, I was probably in a Chinese restaurant.” That earned her a roar of laughter from audience and senators alike.  At her Appellate Daily blog, Michelle Olson calls it the best joke of the day. Greg Stohr at Bloomberg goes so far as to say that Kagan deflected Republican criticism with her humor.  At Slate, Dahlia Lithwick ventures that Kagan is the only nominee in recent years, putting aside now-Chief Justice Roberts, who has come off looking good at her confirmation.  Yesterday’s hearings made evident, Lithwick declares, that “to know Elena Kagan is to love her.” Above the Law collects five favorite Kagan quotes from the day. At the WSJ Law Blog, Ashby Jones focuses on Kagan’s sentimental side, recounting her heartfelt words about Miguel Estrada.

Today’s hearings may be a bit more serious. Shannen Coffin of the National Review Online yesterday released an article in which he argues that Kagan “manipulated the statement of a medical organization to protect partial-birth abortion.” The Volokh Conspiracy’s Jonathan Adler expects to hear about this today, predicting it “will fire up Kagan’s opponents and the GOP base, particularly social conservatives.” This on the heels of Kagan’s colloquy with Senator Feinstein, during which Kagan expressed a view that Bench Memo’s Clarke D. Forsyth characterizes as a signal that Kagan will be “for unlimited abortion rights and hostile to any state regulation.”


  • The Ninth Justice has a gallery of photographs from the hearings.
  • The AP’s Jessica Gresko (via the Chicago Tribune) describes the hearings as “a lesson in legalese for the public.”
  • Kagan thinks Miguel Estrada is qualified to be an appellate judge or Supreme Court Justice, the WSJ Washington Wire Blog’s Naftali Bendavid reports. President George W. Bush nominated Estrada to serve as a federal appellate judge, but Democrats prevented his confirmation.
  • The historians at Backstory discuss—in their radio program—the history of Supreme Court nominations, describing nominations that took place even before the previous century began.