Live: Elena Kagan Senate confirmation hearing


6:43 p.m. EDT
For Sen. Tom Coburn (R-Okla.), the issue after more than nine hours of questioning Elena Kagan’s qualification to be a Supreme Court justice was the paucity of answers. “Maybe you should be on ‘Dancing with the Stars,’ ” the conservative Republican said, citing a range of social issues he argued that Kagan has stepped around without answering.

“I think you are a liberal and strong enough to defend that,” Coburn said. Refusing to acknowledge her politics is wrong and is unfair to the American people, Coburn insisted. Kagan has been very careful to separate her role as an individual and as the solicitor general representing the government’s position from what she would do as a judge looking at a case. That separation has allowed her to avoid describing her personal politics despite repeated GOP pleas.

In her response to Coburn, Kagan argued there were some jobs where political leanings were proper knowledge and some where it was not. “There is a difference between being a legislator then as a judge,” she said.


“The American people have a right to know what Elena Kagan is,” Coburn said. “She is smart, tough as nails, a superior intellect,” he said trying to her coax her into stating a political position.

It was an obvious line of Republican questioning, but Kagan, like most other Supreme Court nominees before her, sidestepped any political pronoucement.

Not even honey was more conducive.

“This is softball,” Coburn continued.

“Promise?” Kagan replied to laughs, the latest in a day of one-liners and general friendliness.

“What do you say to people who ask if political positions influence your decisions?” Coburn pressed. “What do you tell the American people listening to this hearing?” Kagan argued that her political role in President Bill Clinton’s White House was just four years in a 25-year legal career that was mainly as a teacher, scholar and academic. Then she came to a point she has tried to make in other ways throughout the long day of cross-examination.

“I would hope they listen to this hearing and come away with the view that it is all about law when you put on that robe,” Kagan said.

After Coburn, Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) asked if Kagan would like to take a break before getting to some of the others senators.


“Some of the others, not one of the others,” Kagan responded.

At least one more Democrat will get a chance to ask questions on Tuesday then the committee will decide whether to finish the rest of the first round of questioning or recess until Wednesday.

-- Michael Muskal

Reach of the federal government
6:24 p.m. EDT
Sen. John Cornyn, chairman of the Senate Republicans’ campaign committee, touched few hot buttons in his questioning of Elena Kagan late Tuesday afternoon. The Texas senator did, however, probe the Supreme Court nominee about what he said was the over-reach of the federal government in recent years, raising the recently passed healthcare law as an example.

“Many Americans are concerned … that Congress has imposed an individual mandate on health coverage and imposed a penalty, a financial penalty, if you don’t purchase government-approved health insurance. To my knowledge that would represent an unprecedented reach of Congress’ authority to legislate under the interstate commerce clause,” Cornyn said.

Kagan said that existing law “is to grant broad deference to Congress in this area,” with few exceptions. She did not refer to the healthcare law in her response.

“To the extent that Congress regulates the channels of commerce, the instrumentalities of commerce and also to the extent that Congress is regulating things that substantially affect interstate commerce, there the court has given Congress broad discretion,” she said.


Since the New Deal era of the 1930s, the Supreme Court has said that the federal government can regulate almost anything that involves economic or commercial activity. Some legal experts have argued that such precedent would make legal challenges to the healthcare legislation difficult.

Cornyn had initially stated Tuesday that he hoped to revisit an earlier discussion with Sen. Jeff Sessions (R-Ala.) related to Kagan’s role in banning military recruiting at Harvard Law School, but his time expired. Cornyn will likely return to the subject as he and other senators get an opportunity for a second round of questioning Wednesday afternoon.

-- Mike Memoli in Washington

Kagan brings humor to the hearing
4:24 p.m. EDT
While fielding serious questions, Elena Kagan seems to be waging a charm offensive with the Senate Judiciary Committee, showing a surprisingly sharp sense of comedic timing.

An exchange Tuesday afternoon about the otherwise sober matter of the failed Christmas Day terrorist bombing of a transatlantic flight was just the latest example. Sen. Lindsey Graham (R-S.C.), building up to a question about Kagan’s role in the Obama administration’s handling of would-be bomber Umar Farouk Abdulmutallab, asked the solicitor general where she was on the day of the attack.

Kagan appeared tentative at first, warning that because it was an ongoing legal matter she was reluctant to comment. Graham again asked, simply, where she was.

“Like all Jews, I was probably at a Chinese restaurant,” Kagan answered, prompting hearty laughter in the hearing room.


Sen. Charles E. Schumer (D-N.Y.), who followed Graham in questioning the nominee, later remarked to Kagan about Justice Antonin Scalia’s reputation as having the best sense of humor of the current members of the Supreme Court.

“If you get there, you’re going to give him a run for his money,” he added.

-- Mike Memoli in Washington

Gibbs says Republicans are playing games
4:05 p.m. EDT
White House Press Secretary Robert Gibbs defended Supreme Court nominee Elena Kagan’s testimony about military recruiting at Harvard Law School, charging that Republicans were simply playing games at Tuesday’s confirmation hearing.

Sen. Jeff Sessions (R-Ala.) said earlier Tuesday that her responses to questions about banning military recruiters at the law school, where she was dean, seemed “disconnected to reality.”

At Tuesday’s White House briefing, Gibbs said, “She is providing full, open and forthcoming testimony about issues in the law. Despite efforts by others to create a pattern of fact that doesn’t exist on military recruiting at Harvard, she has explained why news accounts, why documents that were released by the Pentagon and why students who were at Harvard and [now serve in the military] continue to [show] that the military had full access to the students at Harvard.”

Gibbs said he had not spoken with President Obama about the progress of the confirmation hearings but that the president continued to believe that Kagan would be a “very capable” justice and had the support needed to be confirmed.

-- Mike Memoli in Washington

Grassley questions Kagan on 2nd Amendment
3:30 p.m. EDT
Questioning resumed at the confirmation hearings for Elena Kagan Tuesday afternoon, with Sen. Charles E. Grassley (R-Iowa) asking about the 2nd Amendment and whether foreign law should be relevant to decisions made by the Supreme Court.


Kagan pledged to honor the principle of stare decisis – the following of judicial precedent -- with regard to recent decisions on gun rights in District of Columbia vs. Heller and McDonald vs. City of Chicago. Both cases sided with individuals over local governments in disputes over laws that restricted gun ownership.

Kagan, testifying before the Senate Judiciary Committee, called the Heller decision specifically a “very fundamental moment in jurisprudence.”

“I do think that Heller is the law going forward,” she said. “I have absolutely no reason to think that the court’s analysis was incorrect in any way. I accept the court’s analysis and will apply it going forward.”

On the question of foreign law being used by judges in domestic cases, Kagan said she was in favor of “good ideas coming from wherever you can get them” but that their application should be limited.

“I don’t think that foreign law should have independent precedential weight in any but a very narrow set of circumstances,” she said. “There are some cases in which the citation of foreign law or international law might be appropriate.”

One such case was in Hamdi vs. Rumsfeld, a 2004 decision that gave individuals considered enemy combatants the ability to challenge their detention if they were U.S. citizens.


-- Mike Memoli in Washington

Can a New Yorker relate to Wisconsin?
1:54 p.m. EDT
It was up to Sen. Russell D. Feingold (D-Wis.) to set up the final moments of comic relief before the Senate Judiciary Committee broke for lunch.

After asking piercing but friendly questions on campaign financing and gun control, Feingold turned to Supreme Court nominee Elena Kagan to ask the same question he did of Sonia Sotomayor a year ago: How could a New Yorker be sensitive to the needs of rural areas and small towns like those in his state of Wisconsin?

“Does it count that I lived in Chicago?” Kagan joked.

Chicago is also the home of the Cubs, one of baseball’s victory-challenged enterprises. Justice John Paul Stevens, who retired Monday, is a big Cubs fan.

In addition to filling Stevens’ place on the court if confirmed, Kagan would be another justice with a fondness for troubled baseball teams. She’s a fan of the Mets. (Their cross-town rival, the Yankees, meanwhile, claim Sotomayor as a big-time fan.)

Sports metaphors litter any discussion of politics and policy, but in this case they’re just a tension breaker to ensure digestion. The hearing resumes this afternoon.

-- Michael Muskal in Los Angeles

KKK and NRA? That’s ‘ludicrous’
1:36 p.m. EDT
Former Justice Thurgood Marshall’s name has been invoked often at the confirmation hearings for Elena Kagan, his former law clerk. In response to questions from Sen. Jon Kyl (R-Ariz.), Kagan said Tuesday that, if confirmed, she intended to set her own course on the court.


“I love Justice Marshall,” the solicitor general said. “He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan.”

During Kyl’s questioning, he also asked Kagan to explain a note of hers written while serving in the Clinton White House, in which she referred to the Ku Klux Klan and the National Rifle Assn. as “bad guy orgs.”

Asked if she would equate the KKK with the NRA, she said “it would be a ludicrous comparison” to make, explaining that these were simply notes from a telephone call in which the sentiments were paraphrased and not her own. “It was just telephone notes.”

In a lighter exchange, Kagan was asked if she agreed with the assessment made by several Democratic senators that the Roberts court had been “too activist in supporting the position of corporations and big business.”

“Sen. Kyl, I would not want to characterize the current court in -- in any way. I hope one day to join it,” she said.

Replied Kyl: “And they’ve said you’re not political, right?”

-- Mike Memoli in Washington

Kagan ‘disconnected to reality’
12:52 a.m. EDT
Speaking to reporters during a break in Tuesday’s confirmation hearing for Supreme Court nominee Elena Kagan, Sen. Jeff Sessions (R-Ala.) said Kagan’s answers to his questions about military recruiting at Harvard seemed “disconnected to reality.”


Kagan was dean of Harvard’s Law School when military recruiters were banned from accessing Harvard’s Office of Career Services.

“There’s not two truths about what happened at Harvard. There’s one, one truth,” said Sessions, the ranking Republican on the Judiciary Committee. “The American people need to know what that truth is.”

Sessions described Kagan as “not rigorously accurate” in her description of the events at Harvard. After their exchange, Sessions said he “felt less comfortable than I did before” about her nomination. “I would have thought we’d had a much more clear explanation of what happened. Even if she had to take a few hits on it … to give us a clear and succinct analysis of it,” Sessions said.

He declined to say whether the exchange was grounds for a filibuster. In an earlier interview on CNN, Sessions said Kagan had “gotten herself in a position that is not becoming of a person who would like to see herself on the Supreme Court.”

-- Mike Memoli in Washington

No comment, says Kagan
12:34 a.m. EDT
Elena Kagan resorted to a favorite response of all Supreme Court nominees when she declined to answer questions dealing with the touchy issue of the war on terror at her confirmation hearing Tuesday.

Sen. Dianne Feinstein, a California Democrat and head of the Intelligence Committee, led the questioning on the issue, but Kagan shied away from stating her own point of view, arguing that there were pending cases likely to go to the Supreme Court.


The war on terror raises questions about the government’s authority to incarcerate and question suspects and how they will be tried and under what system of law. The Obama administration is already past its self-imposed deadline to close the prison in Guantanamo Bay, Cuba, but it is unclear what will happen to all of the detainees.

The issue also raises questions about the power of the executive branch versus the other branches of government. In this area, Kagan also resorted to an old standby, the three-part scheme created in the 1950s by Justice Robert Jackson in the Youngstown decision to determine how executive power was to be evaluated.

Jackson argued in Youngstown Sheet & Tube Co. vs. Sawyer that executive decisions could be viewed in the context of the president acting with expressed or implied congressional authority; cases in which Congress had yet to act; and cases in which the president defied Congress.

That scheme, generally praised, means that congressional intent is considered important in how the high court determines the legality of executive action. Kagan’s position is at the center of judicial discussions but is slightly different from that of the Bush administration, which argued for the superior power of the executive.

On other issues, Kagan told Feinstein that she considered recent Supreme Court decisions expanding gun rights to be settled law. Feinstein said officials needed room to deal with gun control and gang violence. “Once a court decides a case as it did,” Kagan said, “it’s binding precedent.”

It is a position that will likely return when the questioning gets around to abortion rights.


-- Michael Muskal in Los Angeles

An ‘advocate’ for Citizens United
11:49 a.m. EDT
One of the ongoing issues in the Elena Kagan confirmation hearing is the partisan split over the Supreme Court’s ruling in the Citizens United case, which broadened the idea of political speech to include spending from corporations and unions.

Democrats view the ruling as a dangerous expansion that gives corporations more power in the political system because they have the resources to push an agenda and can use their money to give themselves a louder voice. Republicans see the ruling as fair, granting corporations political rights similar to those of individuals.

As solicitor general, Kagan unsuccessfully argued the case before the Supreme Court. In addition to the time-honored battle over political free speech, the case is a window to how Kagan functions as the government’s top lawyer.

In a friendly exchange Tuesday morning with Sen. Orrin Hatch (R-Utah), Kagan carefully avoided answering his questions on her personal views about the case.

The Supreme Court ruled wrongly, said Kagan, who argued the other side. But she insisted she went to the lectern before the court as an advocate. “There is a distinction between the views as an advocate and as a judge,” she said.

That is an important line in these hearings as Kagan makes the argument that she will approach each case on its merits rather than, as Republicans contended on Monday, as someone who is too liberal and ideological. Kagan also said she viewed the case as settled law.


As an advocate, Kagan said she strongly argued that the limits on corporations’ roles were constitutional. “The first person I convince is myself; sometimes I’m the last person,” she said, smiling. “I did believe we had a strong case to make. I tried to make it to the best of my ability.”

Hatch noted that he favored the court’s Citizens United ruling, seeing it as an expansion of political speech. He also noted that President Obama in his State of the Union address sharply attacked the court’s decision and that liberals had been hostile toward it. Democrats are seeking legislation to regulate the types of campaign contributions that can be made.

In an aside, Hatch also reminded everyone that political speech was a two-edged sword and that the ruling also covered unions. He cited the recent reelection campaign of Democratic Sen. Blanche Lincoln, of Arkansas, who won re-nomination after a blistering campaign in which her opponent was strongly supported by organized labor.

“Blanche Lincoln is one of the nicest people around here,” Hatch said, “and she had $10 million spent by the unions against her.”

-- Michael Muskal in Los Angeles

‘Second-class’ treatment of military
10:56 a.m. EDT
In pointed questioning, the Senate Judiciary Committee’s leading Republican accused Elena Kagan of treating the U.S. military in a “second-class” way during her time as dean of the Harvard Law School, banning military recruiters from campus because she opposed the “don’t ask, don’t tell” policy.

Alabama Sen. Jeff Sessions, the first Republican to engage in direct questioning of Kagan on Tuesday, accused the nominee of creating a climate on campus “that was not friendly to the military.”


At issue is the 1996 Solomon Amendment, which required universities to allow military recruiters access to students as a condition for federal funding. When the 3rd Circuit Court of Appeals ruled that Solomon was unconstitutional in 2004, Kagan banned the military from recruiting through Harvard’s Office of Career Services.

“I thought it appropriate at that point to go back to what had been the school’s longstanding policy, which had been to welcome the military onto the campus but through the auspices of the veterans’ organization, rather than through the offices of our Office of Career Services,” Kagan said.

Sessions said Kagan acted “without legal authority.”

“You’ve continued to persist with this view that somehow there was a loophole in the statute that Harvard didn’t have to comply with,” Sessions said. Because she opposed the military’s policy, “you were taking steps that treated them in a second-class way,” Sessions charged.

“We were never out of compliance with the law,” Kagan said. The number of students recruited actually increased during that time, she said.

As the line of questioning went on, the Obama administration’s rapid-response team circulated a piece written for the White House blog by a Harvard Law alumnus serving in the U.S. Army, testifying to Kagan’s “strong support” of the military.

The contentious exchange concluded only when Sessions’ time expired.

Sen. Leahy then gave Kagan a final opportunity to explain her actions.

“I respect and indeed I revere the military. My father was a veteran,” Kagan said. “I always tried to make sure that I conveyed my honor for the military. And I always tried to make sure that the military had excellent access to our students. But I also felt a need to … defend our school’s very long-standing anti-discrimination policy.”


-- Mike Memoli in Washington

P is for ‘progressive’
10:19 a.m. EDT
Amid his feisty questioning, Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, let slip the dirty word that goads the minority party’s opposition to the Supreme Court nomination of Elena Kagan.

Before launching a blistering cross-examination of Kagan’s action in preventing military recruiters from using resources at Harvard Law School where she was dean, Sessions, of Alabama, invoked the p-word: progressive.

Citing another legal expert, Sessions told Kagan: “I would have to classify you as someone who is a progressive” in the legal community.

Kagan verbally squirmed, trying to duck the question, finally saying she wanted to avoid someone else’s attempt to label her.

“I think people should label themselves,” she replied.

The issue, of course, goes to the long-term question of the shifting dynamic in the court, now controlled by conservatives by a thin 5-4 edge. Kagan is expected to vote most often with the liberal minority and was chosen by President Obama because she would replace a liberal vote on the court, if confirmed.

If she just maintains the status quo now, in the longer term she could be a factor in actually shifting the court away from its current political direction.


Being labeled a progressive by Sessions doesn’t hurt Kagan in her confirmation hearing; neither, for that matter, does it help with Senate votes.

Republicans, however, are hoping it will have an effect in the November elections.

-- Michael Muskal in Los Angeles

Military ‘had access’ to Harvard
9:54 a.m. EDT
In a first, friendly round of questioning, Sen. Patrick Leahy (D-Vt.) aimed to defuse anticipated Republican lines of attack on Elena Kagan by giving the Supreme Court nominee an opportunity to explain her general view of the Constitution and whether the military was banned from recruiting at Harvard Law School during her time as dean.

“Military recruiters had access to Harvard students every single day I was dean,” Kagan told Leahy on the latter question.

The issue, Kagan later said, was that the school had a “longstanding anti-discrimination policy,” which the military could not comply with because of the “don’t ask, don’t tell” policy. The military, therefore, wasn’t allowed use the Office of Career Services.

“I’m confident,” Kagan continued, “that the students had access to the military and the military had access to our students for my entire tenure.”

Leahy opened his questioning by raising an attack from the Republican National Committee involving a statement from former Justice Thurgood Marshall, who said that the Constitution as originally drafted was “imperfect.” Kagan once clerked for Marshall.


“The framers were incredibly wise men,” Kagan said. “They were looking towards the future. They were looking generations and generations and generations ahead and knowing that they were writing a Constitution for all that period of time and that life -- and that circumstances and that the world would change.” Because of that, they wrote some provisions that were “very specific,” like the minimum age requirement to be elected senator, and others that were “of a much more general kind.”

“Those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts,” she said.

-- Mike Memoli in Washington

Day 2 questioning begins
9:23 a.m. EDT
To the extent that there will be any drama in the confirmation hearings for Elena Kagan, President Obama’s nominee for the Supreme Court, it will come Tuesday as members of the Senate Judiciary Committee begin their questioning of the nominee.

Starting with Chairman Pat Leahy, all 19 members of the Senate Judiciary Committee will have 30 minutes each to ask a range of questions of Kagan about her judicial philosophy. Senators sent signals about what ground they might cover Monday in their opening statements, as Republicans in particular expressed concern about whether her political views would cloud her judicial rulings.

Kagan used her introduction to the committee Monday to pledge that she would consider every case “impartially, modestly, with commitment to principle and in accordance to the law.”

The committee leadership hopes to wrap up the first round of questioning Tuesday but concedes that is not likely. That questioning will then conclude Wednesday before the committee moves into a closed session.


-- Mike Memoli in Washington