Wednesday Kagan round-up
on Jun 30, 2010 at 9:42 am
The news media is awash in coverage of General Kaganâ€™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, â€œthe main controversy of the day was Kagan’s policy on military recruiting at Harvard.â€ The WSJ Law Blogâ€™s Ashby Jones reports that Kagan had a â€œ[t]estyâ€ exchange with Senator Jeff Sessions regarding that policy. During the exchange, Kagan argued that â€œ[t]the military had full access to [Harvard] students at all times.â€ Sessions declared the tone of her remarks to be â€œunconnected to reality.â€ 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 â€œdisingenuousâ€â€”at bestâ€”during the conversation. NPRâ€™s Liz Halloran reports that Sessions later â€œsuggested to reportersâ€¦that the nominee might be lying under oath.â€
Kaganâ€™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 Blogâ€™s Nathan Koppel reports that Kagan distanced herself from the article during yesterdayâ€™s hearings. David Friedman of The Ninth Justice and the New York Timesâ€™ Charlie Savage and Sheryl Gay Stolberg echo that conclusion, while Cato@Libertyâ€™s Ilya Shapiro adds that â€œKagan’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 Tribuneâ€™s Jonah Goldberg and Howard M. Wasserman (at ACSBlog)Â both recently expressed concern that the hearings would be a â€œcharade.â€
Many commentators have suggested reforms to the hearings process. At Forbes, Dan Gerstein proposes his solution: a bipartisan agreement to â€œoppose any nominee who refuses to answer appropriate questions about their judicial qualifications and philosophy.â€Â At AOL News, SCOTUSblogâ€™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 â€œterrific consequence.â€ At Bench Memos, Bradley C.S. Watson contends that current hearings bear â€œlittle resemblanceâ€ to hearings that took place before the 1980s, and that the Court is now â€œconsummately political.â€ To illustrate this politicization, he argues Senators should ask nominees to state the holding and legal reasoning in cases that have â€œinflamed the culture wars.â€ Also at Bench Memos, Hadley Arkes contends that legislators should ask Kagan to explain the Courtâ€™s reasoning in certain cases, which â€œwould offer some sense of how [Kagan] herself would reason about these puzzles.â€
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 â€œwould be a great thing for the Court andâ€¦a great thing for the American people.â€ That comment, the WSJ Law Blogâ€™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 Kaganâ€™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 exchangeâ€”which she believes is taken out of context. Bench Memoâ€™s Ed Whelan provides some of that context, and discusses more of Coburnâ€™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 Kaganâ€™s use of the phrase â€œthing of gloryâ€ to refer the vision of the Court held by Justice Marshall, for whom she clerked. Senator Sessions specifically criticized Justice Marshall as a â€œwell-known liberal activist judge.â€ ACSBlog reports that those sorts of comments have prompted a response from the NAACP, which calls the statements â€œastonishing.â€ NPRâ€™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 â€œestablished law.â€
Concerns about Kaganâ€™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, andÂ Appellate Daily. Jonathan Adler at the Volokh Conspiracy notes Kaganâ€™s remark that, rather than empathetic, judging is â€œlaw all the way down.â€
The issue of judicial restraint has been raised more broadly surrounding Kaganâ€™s confirmation. Barry Friedman atÂ Yahoo! NewsÂ and the ACSBlog both discuss Democratsâ€™ recent attempts to characterize the Roberts Court as unduly activist. At the New Republic, Jeffrey Rosen writes that Kaganâ€™s nomination to the seat once occupied by Justice Brandeis â€œcomes at a time when progressives are rediscovering the virtues of judicial restraint.â€ Finally, David Kopel argues in the Washington Times that Justice Sotomayorâ€™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.Â TheÂ Associated Press recaps Kaganâ€™s many witticisms during the day, highlighting her quip in response to Senator Lindsey Grahamâ€™s question about her whereaboutsÂ last Christmas Day: â€œYou know, like all Jews, I was probably in a Chinese restaurant.” That earned her a roar of laughter from audience and senators alike.Â Â At herÂ Appellate Daily blog, Michelle Olson calls it the best joke of the day.Â Greg Stohr atÂ Bloomberg goes so far as to say that Kagan deflected Republican criticism with her humor.Â Â AtÂ 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.Â Â Yesterdayâ€™s hearings made evident, Lithwick declares, that “to know Elena Kagan is to love her.â€Â Above the Law collects five favorite Kagan quotes from the day.Â At theÂ WSJ Law Blog, Ashby Jones focuses on Kaganâ€™s sentimental side, recounting her heartfelt words about Miguel Estrada.
Todayâ€™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 â€œmanipulated the statement of a medical organization to protect partial-birth abortion.â€ The Volokh Conspiracyâ€™s Jonathan Adler expects to hear about this today, predicting it â€œwill fire up Kaganâ€™s opponents and the GOP base, particularly social conservatives.â€ This on the heels of Kaganâ€™s colloquy with Senator Feinstein, during which Kagan expressed a view that Bench Memoâ€™s Clarke D. Forsyth characterizes as a signal that Kagan will be â€œfor unlimited abortion rights and hostile to any state regulation.â€
- The Ninth Justice has a gallery of photographs from the hearings.
- The APâ€™s Jessica Gresko (via the Chicago Tribune) describes the hearings as â€œa lesson in legalese for the public.â€
- Kagan thinks Miguel Estrada is qualified to be an appellate judge or Supreme Court Justice, the WSJ Washington Wire Blogâ€™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 discussâ€”in their radio programâ€”the history of Supreme Court nominations, describing nominations that took place even before the previous century began.