We didn’t hear any questioning of Elena Kagan in the first day of her confirmation hearing before the Senate Judiciary Committee, but we did get the opening statements of all of the senators on the Committee and we heard from the nominee herself. The Democrats have 12 members including the chairman, Patrick Leahy (VT), and Herb Kohl (WI), Dianne Feinstein (CA), Russ Feingold (WI), Arlen Specter (PA), Chuck Schumer (NY), Dick Durbin (IL), Benjamin Cardin (MD), Sheldon Whitehouse (RI), Amy Klobuchar (MN), Ted Kaufman (DE), and Al Franken (MN). The Republicans only have seven members, including the ranking Republican, Jeff Sessions (AL), and Orrin Hatch (UT), Chuck Grassley (IA), Jon Kyl (AZ), Lindsey Graham (SC), John Cornyn (TX), and Tom Coburn (OK).
The battle lines were very clearly drawn. Although Kagan was not asked questions directly, we did get a lot of questioning from the Republicans about Kagan’s record as a law clerk, a political lawyer in the Clinton White House, an academic, and as Solicitor General. Based on their opening statements, we are clearly going to get questions tomorrow about her support for socialism, her ejection of military recruiters from the Harvard campus, her praise of liberal activist judges like Aharon Barak, her support for restrictions on gun ownership, her opposition to enforcement of federal immigration laws by states, her opposition to restrictions on partial-birth abortions, her comparison of our treatment of enemy combatants to a “dictatorship,” and her support for government censorship of political speech.
On the other hand, anyone who had been stranded on a desert island without access to the news might have been excused for thinking that today’s event was actually the beginning of confirmation hearings for Chief Justice Roberts and Justice Alito, given the unending attacks mounted by the Democratic Senators on the commendable and outstanding records of these two justices.
Anyone who got stranded on a desert island in 1995 might well have also thought that CSPAN was running an old Saturday Night Live skit when they saw Al Franken giving the final opening statement of the day as a U.S. Senator. All of the Democrats, including Franken, spent most of their time pushing the judicial activism line against the conservative justices on the Court and making many claims about past decisions that are simply not true. Their opening statements really revealed more about themselves and their unconscionable view of the unlimited power of the legislative branch, as well as their belief that the Court should decide cases not based on the law, but on who is the most “sympathetic” party in the case. Senator Feinstein certainly showed how opposed she is to the Second Amendment when she called today’s McDonald v. Chicago case “shocking.” What is shocking is her cavalier treatment of a fundamental right enshrined in the Bill of Rights.
As Senator Cornyn said in his opening statement, it will be up to the members of the Committee tomorrow to try and determine whether Kagan “would move the Supreme Court in a traditional or activist direction.” I actually don’t think there is much doubt about that. But the burden of proof is on Kagan to persuade the Senators “of the path [Kagan] would take if [she] is confirmed to the Supreme Court.”