Day two of the Elena Kagan confirmation hearings saw a little less posturing than yesterday’s opening salvos by Senators bent on diverting attention from Kagan’s record by excoriating the current Supreme Court and falsely characterizing it as a bunch of “conservative activists.” Unfortunately, there was the same lack of meaningful information regarding Kagan’s qualifications to be given a lifetime appointment to the U.S. Supreme Court. Kagan dodged probing questions on a wide range of important legal issues – the value of precedent, the role of the Court, the identification of fundamental rights, and the interpretation of key constitutional provisions.
From the outset, Kagan ran away from every attempt to characterize her political and philosophical views. Senators Sessions (R-AL), Hatch (R-UT), Kyl (R-AZ), Grassley (R-IA), and Graham (R-SC) pressed Kagan on the nature of her political ideology and approach to legal analysis. She generally refused to admit any specific views and even went so far as to claim that she did not know what the term “progressive” meant.
Despite these efforts to avoid categorization, Kagan clearly portrayed herself as a disciple of the liberal legal orthodoxy. At times she predictably embraced the value of precedent and rejected the notion of “judicial activism,” a term which of course is toxic because the American people understand that activists violate the law and Constitution to implement their own social and ideological agendas. She nevertheless made it clear that she would not consider herself bound by the original meaning or the text of the Constitution. In response to questioning by Senator Leahy (D-VT) and Senator Cornyn (R-TX), she also said that the Constitution can be changed by individual cases in order to adapt it to changing circumstances and changing times. The Article V amendment process is unique just insofar is it is the “only way actually to amend the text of the Constitution.”
Further, Kagan said that she would look to a “variety of sources” to interpret the Constitution. Kagan said the sources to which she would look would vary from case to case. Senator Schumer (D-NY) got her to agree to a line of questioning in which he argued that looking to international law to interpret the Constitution is no different than using the Oxford English Dictionary to find the definition of a term used in the Constitution.
A significant portion of today’s hearing also focused on Kagan’s decision to deny military recruiters equal access to Harvard Law School facilities during her tenure as Dean. The Solicitor General obscured the truth on the military recruiting issue. She refused to admit that she knowingly violated the demands of federal law during her time in Cambridge. Instead, she argued that it was more important to uphold Harvard’s non-discrimination policy than to follow clear law that the Supreme Court, which she hopes to join, upheld in a unanimous decision.
Meaningful questioning of the nominee also occurred on the issue of First Amendment rights, specifically as they relate to political speech, campaign finance law, and the Court’s decision in Citizens United. Senator Hatch and others on the Judiciary Committee pressed hard on the validity of the Citizens United opinion and the liberals’ repeated mischaracterizations of the case and its free speech implications. Specifically, Senator Hatch (R-UT) simply asked Kagan to admit that the decision did nothing to change the law prohibiting campaign contributions from foreign corporations. Kagan refused to concede even that simple point.
Discussion of the Court’s recent Second Amendment decisions protecting the right to keep and bear arms in every state of the nation also sparked serious debate. Conservative and liberal Senators alike asked Kagan to offer her opinions on the Heller and McDonald opinions regarding the fundamental nature of gun rights in America. Despite classifying the decisions as binding precedent for lower courts across the country, the Solicitor General refused to get into a serious debate about their broader implications for the definition of fundamental constitutional rights.
Senator Grassley specifically asked Kagan to clarify her understanding of such rights in the context of the Second Amendment. Kagan refused to agree that the right to keep and bear arms is an inalienable right – or to accept Grassley’s invitation to agree with the Declaration of Independence that there are such things as inalienable rights that government does not give, and thus cannot take away.
Hopefully on day three of the nomination hearings tomorrow these issues of paramount importance will continue to be raised and pressed by the Senate Judiciary Committee members. Let us also hope that Solicitor General Kagan actually begins to provide the public with some understanding of where she stands on each of the legal and constitutional issues that bear directly on her fitness to serve for life in the Supreme Court.
Co-authored by Ben Keane.