Opening day of the Elena Kagan Senate confirmation hearing
4:51 p.m. EDT (1:51 p.m. PDT): After more than three hours, Elena Kagan, the solicitor general of the United States, got her chance to speak directly to the panel of senators who will weigh her nomination to be the next Supreme Court justice and promised to do her best and work hard while keeping her mind open to deal with contentious issues.
Kagan avoided taking any specific positions Monday on the contentious social issues on which she will likely rule, if confirmed. Nominated to become the 112th justice on the Supreme Court, she took a modest stand while promising to work impartially for justice for all.
Read more about Kagan’s remarks to the senators here.
4:10 p.m. EDT (1:10 p.m. PDT): Following in the tradition of home state lawmakers introducing Supreme Court nominees, Massachusetts Sens. John Kerry and Scott Brown offered warm praise for New Yorker-turned-Bay State-resident Elena Kagan.
Brown, who campaigned in the January special election for Senate promising to be the “41st vote” for Republicans, called President Obama’s nominee “brilliant” and hailed her “impressive legal resume.” But his remarks Monday were otherwise a simple overview of her resume, as the blue state Republican walked a fine line indicative of his status as a key swing vote in the chamber.
“This committee is about to embark on one of the most serious duties that the Senate is constitutionally tasked with: vetting the qualifications, temperament, and philosophy of a lifetime appointment,” Brown said. “I look forward to Ms. Kagan’s responses to the committee’s questions. I know that I have some of my own.”
Kerry, now the state’s senior senator, recalled his first dealings with Kagan when she acted as a point person in the Clinton White House for negotiations on a contentious tobacco bill.
“It was a tutorial in consensus building from someone for whom it was pure instinct,” Kerry said.
Kagan’s ability to bridge ideological divides would be “an enormous asset” on the Supreme Court, he added.
-- Michael Memoli in Washington
3:29 p.m. EDT (12:29 p.m. PDT): Sen. Benjamin L. Cardin (D-Md.) used his opening statement in Elena Kagan’s confirmation hearing to criticize the Roberts court for rulings that he said blurred the line “between the legislative and judicial branches.”
Cardin quoted from the dissent by Justice John Paul Stevens in Citizens United vs. Federal Election Commission, where he wrote that five justices in the majority “changed the case to give themselves an opportunity to change the law.”
In Citizens United, the court freed corporate and independent groups to spend as much as they wished on their own to elect or defeat candidates.
“I join him in wondering just how or why those who profess to oppose judicial activism have voiced their support for these Supreme Court decisions in which justices have overturned long-standing precedent and substituted their own legislative voices for Congress,” Cardin said.
Cardin did praise the court’s history for righting perceived wrongs, citing Loving vs. Virginia, which declared an anti-miscegenation statue unconstitutional, and Roe vs. Wade, which legalized abortion. He said the next justice should “be guided by legal precedent and the best traditions of the Supreme Court in advancing constitutional rights for individuals against the abuses of power whether by government or businesses.”
The hearings took a 10-minute break following Cardin’s statement. Four senators, all Democrats, were to make their statements after the short recess. Kagan will then give her opening statement, after being introduced by Massachusetts Sens. John Kerry, a Democrat, and Scott Brown, a Republican.
-- Michael Memoli in Washington
3:17 p.m. EDT (12:17 p.m. PDT): For Tom Coburn, the Republican senator from Oklahoma and a veteran of four previous Senate confirmation hearings for the nation’s top court, the Elena Kagan proceedings are a chance for the American people to get to know the woman who wants to be on the nation’s top court.
“I’m really going to want to know a lot about specific issues,” Coburn said.
A doctor, Coburn is among the more conservative senators and a fierce opponent of abortion. He argued that the American people want to know Kagan’s positions on specific issues and that Kagan had an obligation to be forthcoming.
“They ought to know Elena Kagan,” he said Monday. “You have a chance to set a new course, a new precedent,” he added, urging her to tell Americans her positions so that they can “once again find out what a justice is all about.”
Kagan, of course, has famously termed such hearings a “charade,” and an exercise in vapidity. Nominees who say less stand a better chance of confirmation and avoiding controversy is a survival skill.
“It is obvious that previous hearings have not been predictive,” of performance on the court, Coburn noted. But if the nominee is not forthcoming, “Why should we do this dance?”
-- Michael Muskal in Los Angeles
2:26 p.m. EDT (11:26 a.m. PDT): It may seem incongruous for a foreign jurist to be mentioned at a hearing for someone seeking a place on the U.S. Supreme Court. But like so many of the things being mentioned in the opening statements, this is code.
Sen. Lindsey Graham (R-S.C.) brought up Aharon Barak, former president of the Israeli Supreme Court, whom Kagan has called a hero. Graham and other Republicans use Barak as the example of judicial activism, a Republican anathema.
Barak’s name is connected to a host of important actions, including probing corruption and investigating his country’s actions in allowing the massacre of refugees in Palestinian camps.
But in many ways, he is comparable to John Marshall, the longest-serving chief justice of the United States who dominated the court in the first third of the 19th century. It was Marshall who established the first great principle of activist judges, the idea of judicial review, and made the court an equal of Congress and executive in the U.S. political pantheon.
Democrats will fight the Barak reference by noting the Israeli jurist has also been praised by conservatives, including Justice Antonin Scalia.
-- Michael Muskal in Los Angeles
2:17 p.m. EDT (11:17 a.m. PDT): Sen. Arlen Specter (D-Pa.), serving out the final months of his fifth term, lamented both the increased ideological tension of the Supreme Court and the declining number of cases it decides to hear.
The court “has become an ideological battleground, and the activism is on both sides,” the 80-year-old Specter said in his opening statement of Elena Kagan’s confirmation hearing Monday.
Specter said that because Congress has the authority to direct the Supreme Court to hear certain cases, it is fair for senators to ask nominees what kinds of cases they might choose to hear. He called a sharp decline in the number of cases being considered by the Supreme Court now “inappropriate.”
Specter lost the Democratic primary in Pennsylvania on May 18. He had been the ranking Republican on the Judiciary Committee until he switched parties in April 2009. Kagan is the 12th nominee to the Supreme Court that Specter has considered in his 30 years in Congress.
-- Michael Memoli in Washington
2:08 p.m. EDT (11:08 a.m. PDT): At the confirmation hearing for Elena Kagan, Arizona Republican Sen. Jon Kyl tried to distinguish between results and impartiality -- political code for the central GOP argument of whether the Supreme Court should be used to remake society.
The Senate Judiciary Committee needs to learn whether Kagan is “a result-oriented nominee or will approach each case impartially on the merits,” Kyl said.
For Republicans, the essence of the Supreme Court is its restraint and its focus on judging each case only on the conditions that are presented. Be only an umpire, is the Republican mantra for a top judge.
“Results-oriented” for Republicans means using the case to enshrine an ideological principle already known. The phrase is similar to the use of “activist judges,” always a bad thing for those who avoid change.
Politically, the distinction is also part of what Republicans see as an attack on the Obama administration in this midterm election year. President Obama favors a government solution for social problems, such as healthcare, financial regulation and energy, while Republicans argue that such efforts will only grow government and hinder a market-oriented solution.
-- Michael Muskal in Los Angeles
1:47 p.m. EDT (10:47 a.m. PDT): As Sen. Dianne Feinstein (D-Calif.) noted, the Elena Kagan confirmation process has been a “snooze-fest.” Chairman Patrick J. Leahy (D-Vt.) even noted that senators Monday have not even been using the full 10 minutes allotted to them for introductory statements. That largely sums up the first hour of proceedings with the Senate Judiciary Committee.
In his statement, Sen. Charles E. Grassley (R-Iowa) focused on Kagan’s lack of experience, either as a judge or a practicing lawyer. “Your relatively thin record clearly shows you’ve been a political lawyer,” he said. This echoed remarks by some of his Republican colleagues.
Sen. Russell D. Feingold (D-Wis.), who praised Kagan’s credentials, noted that the committee had gone more than a decade before considering a Supreme Court appointment, but now is considering its fourth in five years.
-- Michael Memoli in Washington
1:32 p.m. EDT (10:32 a.m. PDT): California Sen. Dianne Feinstein on Monday took on the GOP’s lead argument opposing the confirmation of Elena Kagan, saying that the solicitor general had the qualifications to be the next justice of the Supreme Court, even though Kagan had never before sat as a judge.
Republicans, such as Sen. Jeff Sessions of Alabama in his remarks, are arguing that Kagan’s lack of judicial experience is a handicap, but Feinstein, a Democrat, insisted that was no bar and could even help her cope with tough societal issues.
“You have never been a judge,” Feinstein said to the nominee. “Frankly, I find this refreshing.”
Feinstein went on to argue that documents of Kagan’s service in the Clinton White House showed her to be evenhanded and “unquestionably qualified,” to sit on the court.
“You were a valuable advisor, smart, reasonable and highly respected,” Feinstein said.
-- Michael Muskal in Los Angeles
1:25 p.m. EDT (10:25 a.m. PDT): Wisconsin Sen. Herb Kohl, the second-ranking Democrat on the Judiciary Committee, expressed concern in his opening statement about Kagan’s views of the Constitution, saying there is less evidence about what kind of judge she would be than for any recent nominee.
“Your judicial philosophy is almost invisible to us,” he said.
Kohl cited Kagan’s own words about the confirmation process, which she once bemoaned as “a vapid and hollow charade.” He urged her to be more forthcoming now that she is in the hot seat.
Kohl said he would like to see the sense of “compassion” in the Supreme Court nominee, saying the law “is more than a mental exercise or an intellectual feast.”
Before the hearing, Kagan got a morning pep talk from President Obama in the Oval Office before heading to Capitol Hill for the proceedings. According to a White House official, the president invited her to stop by so he could offer his encouragement and wish her good luck.
Obama has no public events scheduled Monday, after returning from the G8 and G20 meetings in Canada this weekend.
-- Michael Memoli in Washington
1:14 p.m. EDT (10:14 a.m. PDT): Sen. Jeff Sessions set the GOP tone for the Elena Kagan confirmation hearing, calling the nominee too liberal and too inexperienced to be confirmed as the 112th justice of the U.S. Supreme Court.
Nevertheless, Sessions, the ranking Republican from Alabama, promised a fair hearing, but a tough one.
“As I have pledged, Republicans are committed to conducting this hearing in a thoughtful and respectful manner,” Sessions said. “It is not a coronation, but a confirmation. Serious and substantive questions will be asked. Ms. Kagan will be given ample opportunity to respond.”
“Ms. Kagan certainly has numerous talents and good qualities, but there are serious concerns about this nomination,” Sessions added.
The senator questioned Kagan’s experience, arguing that she had never been a judge, nor did she have real-world experience as a lawyer.
“While academia certainly has value,” he said, “there is no substitute for being in the harness of the law, handling real cases over a period of years.”
Sessions then went on to question Kagan’s politics, saying they were too liberal on key issues, such as abortion rights and gun control. He also questioned her actions in preventing military recruiters from using school offices while dean of Harvard Law School.
Sessions also accused Kagan of supporting judicial activism, GOP code for liberal judges.
“Few would dispute that this record tells us much about the nominee. In many respects, Ms. Kagan’s career has been consumed more by politics than law. This worries many Americans,” Sessions said.
--Michael Muskal in Los Angeles
12:56 p.m. EDT (9:56 a.m. PDT): Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) opened the confirmation hearing for Supreme Court nominee Elena Kagan by acknowledging the death of Sen. Robert Byrd (D-W.V.), calling him the “keeper of the Senate flame.”
“No senator came to care more about the Constitution,” he said, noting that he kept a pocket-sized copy with him at all times. “He could put it back in his pocket and recite it verbatim.”
Leahy then got to the business at hand, welcoming Kagan to the committee room and noting the history she would make if confirmed.
“There have been 111 Justices in the Supreme Court of the United States. Only three have been women,” he said. After the appointment of Sonia Sotomayor a year ago, “now we are poised to make more progress,” he added.
As chairman of the committee, Leahy speaks first, and he urged his colleagues to keep to their 10-minute limit as remarks alternate among Democrats and Republicans, in order of seniority.
“I urge Solicitor General Kagan to be open and responsive and to share with us and the American people her judicial philosophy and indicate her judicial independence,” he said in his statement. “I believe that fair-minded people will find her judicial philosophy well within the legal mainstream.”
-- Michael Memoli in Washington
11:57 a.m. EDT (8:57 a.m. PDT): Supreme Court nominee Elena Kagan will set a tone of deference and restraint as she introduces herself Monday to the Senate Judiciary Committee, saying that the Supreme Court must be a “modest” institution that is “properly deferential” to other branches of government.
“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people,” she will say, according to excerpts of her opening statement released by the White House on Monday morning.
The statement is typical of recent nominees to the high court, as the notion of “activist judges” has become anathema in contemporary politics. Kagan will say that the role of the Supreme Court is to safeguard the law through “a commitment to even-handedness, principle and restraint.”
Kagan, the U.S. solicitor general, will also portray herself as someone who can bridge the ideological divide, using her work as dean of the Harvard Law school as testimony.
“No one has a monopoly on truth or wisdom,” she will say. “I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than 50 years ago -- of ‘understanding before disagreeing.’”
Kagan’s statement also invokes the statement inscribed on the Supreme Court building: “Equal Justice Under Law,” which she says commands of judges an “even-handedness and impartiality.”
Kagan’s confirmation hearing is scheduled to start within the hour. Stay tuned for regular updates as the Judiciary Committee considers President Obama’s second nomination to the Supreme Court.
-- Michael Memoli in Washington
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