Republican Senators are focusing in on their key lines of attack in the second round of questioning. There doesn’t seem to be any thought that they will get Kagan to say something that will derail her confirmation, or even that they are plowing new ground. Rather, they appear to be trying to get Kagan to respond to specific quiestions in a way that can be used more easily in future statements regarding her confirmation.
So, which issues are getting their attention?
Military recruiting at Harvard leads the list. Several Senators attempted to get Kagan to admit that military recruiters were disadvantaged, or that her decisions in connection with the litigation involving military recruitment reflected a hostility to the military in general. Kagan’s response: the military had access to Harvard students through the Law School’s veterans association; and several Senators have pointed to letters supporting Kagan from Harvard graduates serving in Iraq.
Abortion was mentioned by several Senators, specifically Kagan’s work on partial birth abortion legislation when she was a staffer in the Clinton White House. Kagan explained that her work reflected President Clinton’s policies, not what she would do as a judge.
Constitutional rights of gun owners has been another area of focus, with several references to Kagan’s memo to Justice Marshall from her time as a law clerk in which she said she was “not sympathetic” to the Second Amendment claim. Kagan: the comment reflected the lack of precedent supporting the claim at that time, not her personal views.
The role of original intent in constitutional interpretation also has been raised. As discussed in an earlier post, the argument here is that Kagan’s approach to constitutional interpretation really lets judges “change” the Constitution. Kagan’s response: the Constitution does not change, the facts to which its general principles apply change or—as a result of other judicial decisions or other developments—a precedent may be undermined.
The scope of Congress’s power under the Commerce Clause. A number of Republican Senators have expressed concern that Kagan’s view of the Commerce Clause would impose little or no constraint on the power of the federal government. (As noted yesterday, this issue is directly related to the currently-pending challenges to the health care law enacted earlier this year.)