Elena Kagan with Harvard graduate Kyle Scherer
In 1995, Elena Kagan wrote in a book review that Supreme Court confirmation hearings were a “vapid and hollow charade.” Whatever your take on that observation, today she proved that they can also be funny. Responding to a question from Sen. Lindsey Graham (R-SC) about where she was on Christmas (a lighthearted precursor to a line of questions about the foiled airplane bombing in late December 2009), Kagan replied, “Like all Jews, I was probably at a Chinese restaurant.” The normally staid observers in the committee room roared with laughter.
By at least one account, and probably several others, Solicitor General Kagan acquitted herself quite nicely on Tuesday — and not just with her dry wit. Over the course of the day, she fielded questions from senators on both sides of the aisle on many topics. The issues ranged from social policy — abortion, gun control, immigration, campaign finance reform, and others — to legal principles such as separation of powers, congressional intent, the due process clause, and stare decisis. You’d be hard-pressed to come up with any earth-shattering exchanges or bombshells, but a couple of newsworthy items did come to the forefront.
For starters, Kagan was pretty blunt in speaking about her politics. Several Republican senators, particularly Sen. Tom Coburn (R-OK), continued their attempt to portray her as a liberal political activist who would use a Supreme Court seat to craft social policy. Kagan debunked those claims forcefully. While not shying away from her political leanings — she described herself during the hearing as a lifelong Democrat who generally holds progressive views (which, of course, you might expect from someone who has worked in both the Clinton and Obama administrations) — she stated emphatically that as a judge her “politics would be, should be, have to be completely separate” from her role as a legal advocate.
As mentioned in our hearings preview, AAUW submitted a list of suggested questions, and some of our topics received some airtime on Tuesday. For instance, we were grateful to hear Sen. Ben Cardin (D-MD) discuss the injustices Lilly Ledbetter faced due to a lifetime of pay discrimination and the subsequent ruling by the Supreme Court that her previously successful lawsuit had no merit. Cardin also referenced the AAUW-supported Lilly Ledbetter Fair Pay Act, signed into law by President Obama in January 2009, which corrects the Supreme Court’s misguided decision. On reproductive rights, Kagan stated that women’s lives and health must be protected in any abortion-restriction legislation, citing a long line of Supreme Court precedents to that effect (with the sole exception of the late-term abortion procedure at issue in the Gonzales v. Carhart case). She further reiterated her view, supported by AAUW, that the “Don’t Ask , Don’t Tell” policy with respect to gays in the military was unfounded and should be repealed, while at the same time staunchly defending her record as dean of Harvard Law School regarding military recruitment on campus.
A full synopsis of the hearing explores the myriad issues Kagan discussed on Tuesday. By the end of the day, most senators on the panel had concluded their first round of questions. After that first round is completed today, Sen. Patrick Leahy (D-VT) will establish the parameters for a second round, if needed. On Wednesday or Thursday, several outside witnesses will speak about Kagan’s overall fitness for the position.
Check back tomorrow for our next update!
Elena Kagan Confirmation Hearings: Preview | Day 1 | Day 2 | Day 3 | Day 4
