The Kagan Hearings - Day 2

The questioning is underway for Supreme Court nominee Elena Kagan as Senators focus on her judicial competency and method of constitutional interpretation.

On day two, Kagan was also questioned about her actions regarding military recruiters while she was dean of Harvard Law School and about her views on the Second Amendment.

While Kagan did provide some insight into her views on issues, she also dodged questions.  For example, Kagan did admit under questioning by Senator Graham that her political views are generally progressive. However, she refused to answer a more important, earlier question from Senator Sessions about whether she was a legal progressive, which would get to the heart of her judicial philosophy.  

Senator Sessions read a statement from Vice President Bidens chief of staff, Ron Klain, saying Elena Kagan is clearly a legal progressive, and Session asked Kagan if she would characterize herself this way. After being asked three times, she responded with the statement:

I love my good friend, Ron Klain, but I guess I think that people should be allowed to label themselves. And thats you know, I dont know what the label means and so I guess Im not going to characterize it one way or the other.

Kagans answers regarding constitutional interpretation are also of note - especially an exchange between Senator Leahy and Kagan on the issue of constitutional change. 

Senator Sessions pressed her on this discussion, stating: 

You indicated that there is an amendment process in the Constitution, there are two ways to do so in the Constitution. Is there any other way than those two ways that the Constitution approves to change the Constitution? 

She responded:

Well, Senator Sessions, the Constitution is an enduring document. The Constitution is the Constitution. And the Constitution does not change except by the amendment process.

But as I suggested to Chairman Leahy, the Constitution does over time -- we're asked -- courts are asked to think about how it applies to new sets of circumstances, to new problems, to things that the framers never dreamed of. And in applying the Constitution case by case by case to new circumstances, to changes in the world, the constitutional law that we lives -- live under does develop over time.

Senator Sessions followed-up with the question:

Well, developing is one thing. And many of the provisions, as you noted, they're not specific. But they're pretty clear, I think, but not always specific. But you -- 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?

Kagan replied:

I do agree with that, Senator Sessions. That's the point I was trying to make, that -- however inartfully -- that you take the Fourth Amendment and you say there's unreasonable searches and seizures and that provision stays the same unless it's amended. That's the provision.

And then the question is, what counts as an unreasonable search and seizure? And new cases come before the court and the court tries to think about, to the extent that one can glean any meaning from the text itself, from the original intent, from the precedents, from the history, from the principles embedded in the precedent, and the court sort of step by step by step, one case at a time, figures out what the Fourth -- how the Fourth Amendment applies.

Even with Kagans comments about the Constitution and original intent, there are still questions - and growing concern - about what principles she may find embedded in precedents such as Lawrence v. Texas or Roe v. Wade.

Senator Kyl asked Kagan about the standard for approaching cases and specifically if she agreed with President Obamas marathon analogy that in hard cases the law only takes you the first 25 miles of the marathon, and the last mile has to be decided by whats in a judges heart. 

Kagan replied I think it's law all the way down.  She did acknowledge, however, that there are cases where it is difficult to determine what the law requires.  This raises the question of how Kagan, if confirmed, would approach those cases.

On day three, the four remaining Senators - who have not yet had an opportunity to question Kagan - will conduct their first round of questioning.  Then, the second round begins with all 19 members of the Senate Judiciary Committee getting another opportunity to question Kagan.

We are hopeful that as the questioning continues there will be further clarification on Kagans views on these and other important issues.