Frustration Mounts Over Kagan's Evasions in Senate Hearings

Tuesday, 29 Jun 2010 08:04 PM

By David A. Patten

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Senators from both parties voiced growing frustration Tuesday over Supreme Court nominee Elena Kagan's evasive answers on day two of her confirmation hearings.

A well-prepared Kagan bobbed and weaved, ducking even the most straightforward questions to avoid saying anything remotely controversial. But her evasive tactics left some senators visibly put off.

When Sen. Jeff Sessions, R-Ala., asked Kagan whether she considered herself a "legal progressive," the former Harvard law school dean said: "I honestly don't know what that label means."

When another senator asked whether she would characterize the current court as "too activist," Kagan replied: "I don't want to characterize the court because someday I hope to join it."

The stonewalling tactics could backfire, some observers suggested.

Brian Walsh, a senior legal research fellow with the conservative Heritage Foundation, urged senators to "press in and say, 'Look, you're not giving us the type of information that we need to determine who you're going to be on the court. We don't have the record that we would need, and you're not giving us the answers. So you're going to have to produce … or we would have to conclude that you are not qualified to be a Supreme Court justice."

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Republicans have voiced this view increasingly in recent days: Because of  Kagan's sparse record of jurisprudence, she should bear the burden of proving she deserves confirmation. It's doubtful those arguments will have much impact on the Democratic majority, however.

At times, Kagan said all the right things to reassure GOP senators her rulings would be moderate.

Asked whether a judge should interpret the law, she said attorneys should apply the Constitution as written, adding that, in some sense, "we are all originists."

She promised that her politics "would be, must be, have to be … separate from my judging."

And when Sen. Jon Kyl, R-Ariz., asked whether she agreed with Chief Justice John Roberts that a justice's obligation is to the Constitution, rather than social-justice issues, she replied directly: "Yes, senator, I do."

But at other times, Kagan appeared to give the same bland responses she criticized in a 1995 book review that described the confirmation hearings for justices as "a vapid and hollow charade."

In an exclusive Newsmax.TV interview, Walsh complained: "She has been closing off lines of questioning by saying, 'Well, I can't talk about past cases. I can't talk about future cases. I can't talk about the current court. And really my judicial philosophy or the things I've said about Justice Thurgood Marshall, whom I clerked for, those things really don't have an influence as to who I am, either.'"

One senator losing his patience with Kagan was Sen. Arlen Specter, the erstwhile Pennsylvania Republican who flipped to become a Democrat. When Kagan wouldn't answer whether she would agree to review a case on the surveillance of suspected terrorists, Specter, a notoriously tough questioner, grew curt.

"I don't think I'm making too much progress," he said at one point.

"She has employed a lot of circumlocution," Walsh explained. "She has not been a direct responder to most of the questions that have been difficult. And in a couple of instances the chairman, [Vermont Democratic Sen.] Patrick Leahy, has really rescued her when she was being cornered, and almost had given a direct answer, and he would cut off questioning and interrupt. And that's something that I hope the senators will not continue to put up with."

The push to persuade Kagan to open up stems in part from her sparse legal record. The former Harvard Law School dean had never argued a case before the U.S. Supreme Court before President Obama appointed her to her position as the U.S. solicitor general.

Her sharpest exchange came with Sessions over the issue of military recruitment on Harvard's campus. He hammered her decision to bar the military from on-campus recruiting because of its "don't ask, don't tell" policy. Kagan had found the congressional policy personally offensive, once calling it "a moral injustice of the first order."

She backed down on the recruitment only after federal authorities informed Harvard it could lose its defense-related contracts.

Sessions told Kagan she was "punishing the military," adding: "You were taking steps to treat [military recruiters] in a second-class way."

He also said: "I am a little taken aback by the tone of your remarks. If you have any complaint, it should have been made to the United States Congress."

Kagan's response: "I am confident that the military had access to our students, and the students had access to the military throughout my entire deanship."

The Alabama senator described that view as "unconnected to reality."

One observer, Edward Whelan, president of the Ethics and Public Policy Center, commented on WashingtonPost.com that Kagan "made clear that she wouldn't offer her legal views on anything remotely specific … it seems likely that senators won't know much more about Kagan coming out of the hearing than they knew going in."

Still, Republicans continue to probe and push a nominee whose confirmation is expected to be very difficult to derail, barring a major gaffe. Among their concerns:
  • Republicans say that, as solicitor general, Kagan selectively determined which U.S. laws to defend. She aggressively supported the federal restrictions on corporate campaign ads in Citizens United v. FEC, which the Supreme Court struck down. But she chose not to defend certain laws that defended the federal government's authority to keep violent offenders in prison.
  • She has more experience in the political arena than the legal one. She worked for Democrat and federal Judge Abner Mikva, as a researcher for Michael Dukakis' presidential campaign, and for the Clinton administration as associate counsel to the president.
  • While serving in the Clinton White House, she once wrote a note that appeared to equate the NRA to the KKK. She clarified on Tuesday that she was simply taking notes quoting another speaker on a phone call. "It was just telephone notes . . . That would be a ludicrous comparison," she said.
  • She appears open to the practice of considering the laws of other nations as one of many factors in judicial rulings. Although she said such rulings should not be given "independent precedential weight," she said lawyers should look for good ideas wherever they could find them.
  • As Harvard law dean, she called Israeli Justice Aharon Barak "my judicial hero." The pro-life Americans United for Life labels Barak "the world's most agenda-driven judge." Kagan's explanation to senators: "I gave introductions to many, many people. If any of you came to Harvard Law School, I would have given you a great introduction too." She also said Barak's ideas should not be "transplanted" to the United States.
  • Kagan has expressed admiration for Justice Thurgood Marshall, considered a judicial activist by many conservatives. "If you confirm me to this position," she said Tuesday, "you'll get Justice Kagan. You won't get Justice Marshall."
  • In her Oxford thesis, Kagan stated that judges to craft decisions to "promote certain ethical values and achieve certain social ends." Such sentiments are deeply disturbing to judicial conservatives, who believe the law should not be twisted to advance social causes.
Walsh and other conservatives voice suspicions that Kagan, regardless of her moderate tone, will push a social agenda once she's seated on the bench. They say that while she clerked for Justice Marshall, she wrote several memos that referred to the "good guys and the bad guys" in different cases.

"That's completely out of bounds, that type of reasoning, and something that should be concerning," Walsh told Newsmax. "And when it comes to light, I think that senators should really pursue it, and the American people should be aware of it as well," he said.

Kagan was appointed to replace retiring Justice John Paul Stevens, who frequently dissents from the court's conservative majority. Her confirmation hearings are expected to continue for most of the week.

Tuesday's hearings did provide a few moments of unexpected levity.
Sen. Orrin Hatch, R-Utah, crossed swords briefly with Sen. Leahy over Hatch's questioning. Afterward, the Utah senator drew laughs when he quipped: "We have to have a little back and forth every once in a while, or else this place would be boring as hell."

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