Kagan Firm, Deft on Stand

By Kenneth Jost
Supreme Court Editor, CQ Press

Supreme Court nominee Elena Kagan ended a full day of questioning by Senate Judiciary Committee members on Tuesday [June 29] seemingly comfortable and confident after firmly answering or deftly neutralizing lines of attack from Republican senators.

Kagan combined a command of legal material with recurrent modesty and occasional humor to answer friendly questions from Democrats already committed to supporting her confirmation and more challenging inquiries from Republicans expected to line up against her.

On the most concrete issue raised against Kagan, the former dean of Harvard Law School repeatedly denied preventing military recruiters’ access to students because of her opposition to the military’s “don’t ask, don’t tell” policy on service by gays and lesbians. “Military recruiters had access to Harvard students every single day I was dean,” Kagan said.

GOP senators, led by ranking Republican Jeff Sessions of Alabama, remained unsatisfied. “I'm more troubled today about the nominee than I was yesterday,” Sessions told reporters at a break. He said Kagan’s answers were “disconnected with reality.” But Judiciary Committee chairman Patrick J. Leahy, D-Vt., told reporters later he thought the military recruiting issue had been “put to rest.”

Kagan also did her best to put down repeated suggestions from GOP senators that she could emerge as an “activist” if confirmed to succeed Justice John Paul Stevens, who formally retired from the court on Tuesday after 34-1/2 years on the bench. Under questioning by senators from both parties, Kagan professed support for “judicial modesty” — narrow judicial decision-making divorced from personal views and respectful of precedent.

“Judges cannot import their own preferences . . . or their own moral values,” Kagan told Sen. John Cornyn, R-Texas, late in the day. “It would be inappropriate to do so.”

After initially fending off the question, Kagan did ultimately accept the description of herself as a “progressive.” But she declined repeated opportunities to criticize recent Supreme Court decisions, including the Citizens United decision, where she unsuccessfully argued as solicitor general in defense of the law banning corporate spending in federal campaigns.

In nominating Kagan, President Obama on May 10 linked her to his criticism of the decision as inviting corporate domination of the political process. In her answers, however, Kagan went not much further than to say, “I thought we had a strong case.”

In advance of the hearing, conservative groups had prepared to criticize Kagan for her support of gun control laws as associate White House counsel and deputy domestic policy director under President Bill Clinton. They also noted that while clerking for Supreme Court Justice Thurgood Marshall, Kagan said she was “not sympathetic” to a Second Amendment gun rights claim in a pending case.

On Tuesday, however, Kagan unhesitatingly said she would respect the Roberts Court’s two gun rights precedents: the 2008 decision in District of Columbia v. Heller and the ruling on Monday, McDonald v. Chicago, extending the Second Amendment protection to state and local gun laws as well. “I do agree that those decisions are settled law,” she said.

In their opening statements and in questions on Tuesday, GOP senators repeatedly noted Kagan’s clerkship with Marshall as evidence of likely judicial activism. After expressing admiration for Marshall, however, Kagan said, “If you confirm me, what you get is Justice Kagan, not Justice Marshall.”

Later, she specifically dissociated herself from Marshall’s view, held until his retirement in 1991, that capital punishment is unconstitutional. “I do believe the constitutionality of the death penalty is settled law,” she said.

Kagan also dissociated herself from the view of a “living Constitution,” anathema to conservatives. “I don’t think the term is particularly apt,” Kagan said. The term suggests “a loosey goosey method of interpretation,” Kagan explained. “I most certainly do not agree with that.”

To another critical line of questions, Kagan discounted the role of foreign and international law in interpreting the Constitution, a major complaint of conservatives on and off the court. “The American Constitution is an American document with American history and American precedents,” she said. Judges, she said, “should look to that American document and the precedents in interpreting it.”

Kagan defended, however, her part in a revamping of the Harvard Law School curriculum that included establishing a mandatory international law course for first-year students. International law, she said, “is something that all law students today should be familiar with.” She also rebutted criticism that U.S. constitutional law was not a mandatory first-year course. Constitutional law was covered in a broad first-year course on government processes, she said, and detailed treatment was better deferred until students’ second or third year.

Kagan faces a second day of questioning on Wednesday. Leahy says he plans to end the hearing after testimony from public witnesses on Thursday. The committee, with a 12-7 Democratic majority, is seen as all but certain to recommend Kagan for confirmation in a vote sometime in July. A Senate floor vote — where Democrats now hold a 58-41 majority after the death Monday of West Virginia’s longtime Democratic senator, Robert Byrd — is expected in early August.