Orin Hatch made her do it! Kagan reverses 180 degrees on 'open' questioning

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Offline Satyagraha

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Kagan completely reversed her published opinion that

June 29, 2010
Kagan Shifts on Disclosure of Legal Views at Hearings

WASHINGTON — At the opening of questioning in her Supreme Court confirmation hearing on Tuesday, Solicitor General Elena Kagan quickly backpedaled from her past call for nominees to speak more openly and in specific terms about their constitutional views.

Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues.

Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents, because those issues, too, might someday come again before the court.

In a 1995 book review, Ms. Kagan wrote that recent Supreme Court confirmation hearings had taken on “an air of vacuity and farce” because nominees would not engage in a meaningful discussion of legal issues, declining to answer any question that might “have some bearing on a case that might some day come before the Court.”

She called on senators and future nominees to engage in a much more open and detailed discussion of legal issues.

Ms. Kagan attributed the idea that her 1995 book review went too far to Senator Orrin Hatch, Republican of Utah, saying he had counseled her in a private meeting earlier in the confirmation process to be more cautious in her testimony. Mr. Hatch was not in the hearing room on Tuesday when Ms. Kagan mentioned his advice.

I basically said to Senator Hatch that he was right, that I thought that I did have the balance a little bit off and that I skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints,” she said. “And I think that that was wrong. I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”

As the morning unfolded, Ms. Kagan repeatedly refused to offer an opinion about Supreme Court rulings — even the 2000 case of Bush v. Gore, which the Supreme Court itself said was limited to the facts of the disputed presidential election and had no precedential value. She said that it remained possible that the larger issue of whether or when the court should intervene in a disputed election could still come up.

Still, Ms. Kagan made an exception for this year’s ruling in the case of Citizens United, in which the conservative bloc on the court struck down legal limits on corporate spending to influence elections. Democrats on Monday repeatedly raised that case in their opening statements, portraying it as “conservative judicial activism,” and Ms. Kagan — who had argued the case in defense of the campaign finance rules — said she had convinced herself in preparing for those arguments that the position she had taken was correct.

Some Republicans seemed willing to give Ms. Kagan a pass on her retreat from her 1995 standard about how open and specific nominees should be about their legal views.

“I really don’t have any major disagreement with where she’s drawn the line,” Senator John Cornyn, Republican of Texas, said during a break.

But the hearing placed an early emphasis on more abstract issues like Ms. Kagan’s judicial philosophy about constitutional change. Mr. Leahy asked her to expound on how the Constitution had been amended, and she plunged into a kind of Civics 101 discourse on the framers, drawing a contrast between clear-cut provisions like the one that requires senators to be at least 30 years old,

and other more general provisions, like the Fourth Amendment’s prohibition of unreasonable searches and seizures.

“Those provisions,” she said, “are meant to be interpreted over time.”

The ranking Republican on the committee, Senator Jeff Sessions of Alabama, pushed that line of thinking, pressing Ms. Kagan about what he characterized as a “progressive” legal view that would allow judges to “update the Constitution to make it say whatever they would like it to say.”

“You’re not empowered to alter that document and change its meaning — you’re empowered to apply its meaning faithfully in new circumstances, wouldn’t you agree?” Mr. Sessions said.

Ms. Kagan replied: “I do agree, Senator Sessions. That is the point I was trying to make, however inartfully.”

The first real flashpoint in the hearings came as Mr. Sessions grilled Ms. Kagan on her decision, while she was dean at Harvard Law School, to briefly bar military recruiters from using the school’s facilities, in protest over the “don’t ask, don’t tell” ban on gay men and lesbians serving openly in the armed forces.

Ms. Kagan reiterated that she found the ban “unwise and unjust,” and told the committee that she had been trying to reconcile Harvard’s own antidiscrimination policy with a provision known as the Solomon Amendment, which requires universities that receive federal financing to give full access to the military. Mr. Sessions helped write the amendment, and made clear his displeasure with Ms. Kagan.

“You were punishing the military,” Mr. Sessions said at one point. “You just started giving them the runaround,” he said at another. He also asked why she was treating the military “in a second-class way.”

Mr. Sessions grew increasingly testy until his 13 minutes of questioning wound up. Ms. Kagan, unrattled, pushed back, politely but firmly, telling the senator that military recruiting at Harvard increased during her tenure as dean, and that she sought to accommodate recruiters by having veterans’ organizations host them.

“I conveyed my honor for the military,” she said, “and I always tried to make sure that the military had excellent access to our students.”

Mr. Sessions said during a break that he was troubled by Ms. Kagan’s answers on the military recruitment issue, and felt “less comfortable than before.” While he stopped short of accusing her of lying, he said she was not “rigorously accurate” in describing the dispute between the university and the Defense Department.

“There’s not two truths about what happened at Harvard — there’s one truth,” he said.

Liberals have been somewhat uneasy about Ms. Kagan, and she most likely pleased and angered them on two hot-button issues — abortion and gun control — under questioning from Senator Dianne Feinstein, Democrat of California. Ms. Feinstein, citing her own experience of becoming the mayor of San Francisco in 1978 after the mayor and a city supervisor, Harvey Milk, were assassinated, began by lamenting the epidemic of gun and gang violence in her state.

She demanded that Ms. Kagan explain why two recent Supreme Court decisions, including one issued Monday, extending the rights of individuals to own firearms, must be considered “settled law,” given that both were decided on a narrow 5-to-4 vote. Ms. Kagan’s answer was simple.

“Because the court decided them as they did,” she said, adding: “The operating presumption of our legal system is that a judge respects precedent. It’s not enough, even if you think something is wrong to say, ‘Oh look, that decision was wrong.’ “ The presumption, she said, must be in favor of precedent.

Similarly, Ms. Kagan invoked precedent in a way that is likely to please the left, when Ms. Feinstein asked if she believed that the Constitution requires that any statute limiting abortion must include an exception protecting the health of the mother. Ms. Kagan replied that “the continuing holding” of the court on matters of abortion — except the procedure critics call partial birth abortion — is that “the woman’s life and the woman’s health must be protected in any abortion regulation.”

But Ms. Kagan largely sidestepped questions about the scope of presidential power in national security issues like detention and surveillance, two areas that generated legal controversy after the disclosure of Bush administration policies that relied on sweeping assertions that, in the war on terrorism, the commander-in-chief had inherent power under the Constitution to override limits imposed by statutes and treaties.

Ms. Feinstein, who noted that some liberals have expressed fears that Ms. Kagan might be too sympathetic to executive power, asked Ms. Kagan to explain her thinking about issues like whether American citizens, captured away from a war zone and suspected of aiding Al Qaeda, could be held without trial, or whether Congress had the authority to require the executive branch to get warrants when conducting domestic surveillance.

Ms. Kagan demurred, saying such issues might come before the court. And like many nominees before her, she filled up the time required for an answer by describing a legal framework for analyzing such disputes — it came from a 1952 case involving President Truman’s attempt to seize steel mills to avert a strike during the Korean War, for example — without saying what answer that analysis would generate.

That said, she allowed that cases in which a president has the authority to act contrary to a statute would be “few and far between.” And she emphasized that the Obama administration had rested its policies on Congress’s authorization to use force against terrorists.

After a rather wooden opening statement on Monday, Ms. Kagan seemed to relax and open up on Tuesday, showing flashes of the warmth and humor that friends say are among her most prominent traits. During an exchange with Mr. Hatch, the senator remarked that he and his colleagues “have to have a little back and forth sometimes, or this place would be boring as hell.”

“And it takes the spotlight off me,” Ms. Kagan replied, “so I’m all for it.”

Mr. Hatch parried back: “I’ve been informed that hell is not boring.”

“Just hot,” Ms. Kagan replied.

The late Justice Thurgood Marshall, the first African-American on the court and a particularly liberal judge, has emerged as a dominant figure in the hearings. Ms. Kagan clerked for him in her youth, and Republicans, led by Senator Jon Kyl of Arizona, have attacked Justice Marshall as a liberal “activist” and have expressed concerns about Ms. Kagan’s association with him.

On Tuesday, Mr. Kyl pressed Ms. Kagan repeatedly on Justice Marshall’s reported description of his judicial philosophy that ”you do what you think is right and let the law catch up” — a phrase, the senator suggested, that conveyed Justice Marshall’s willingness to use the court as an instrument to advance a political agenda.

Ms. Kagan replied that she had never heard Justice Marshall use the phrase, though she noted that he had spent ”many decades of his life fighting for the eradication of Jim Crow segregation” and ”eventually, the law did catch up.”

She assured Mr. Kyl, “I love Justice Marshall, he did an enormous amount for me, but if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall.”
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40