The Senate Judiciary Committee today agreed to delay the vote to approve Solicitor General Elena Kagan’s nomination to the Supreme Court for another week. Republicans argued — as expected — they needed more time to review the answers Kagan submitted to their questions for the record after her hearings earlier this month.
TPM read through the dozens of questions and answers so you don’t have to. While most of the answers were a little, well, dry, we’ve collected the Top 5 most noteworthy below.
1. Um, still not a socialist.
In his questions for the record, Sen. Tom Coburn (R-OK) asked Kagan about her thesis, titled, “To The Final Conflict: Socialism in New York City, 1900-1933.”
“I assume you are familiar with the tenets and beliefs of socialists,” Coburn wrote. “Please explain what the limits of government are in a socialist state.”
Kagan’s response:
Other than writing an undergraduate thesis on a single aspect of the history of the American Socialist Party, I have not explored in any significant way the tenets or beliefs of socialists. My general view is that the role of government in a socialist state is more extensive than in a state based on free markets.
He asked a follow up, to which she responded, “Please see above. The role of a judge in interpreting the Constitution is to analyze cases based on legal sources, not political beliefs.”
2. I’m expected to remember all the dumb memos I wrote?
Ranking member Sen. Jeff Sessions (R-AL) asked Kagan about her own comments about one of her memos about teen pregnancy prevention while clerking for Justice Thurgood Marshall. During her 2009 confirmation hearings for solicitor general, Kagan said the memo was “deeply mistaken” and “the dumbest thing I ever read.” Sessions asked Kagan, “Was this the only memorandum you wrote for Justice Marshall that you believe is ‘deeply mistaken’?”
Kagan wrote Sessions that since “more than two decades ago” she wrote more than 500 memos for Marshall, “I am sure that more than one was mistaken.”
Asked about others that might have been “mistaken,” Kagan said she hasn’t reviewed every memo. “Of those I have seen, the memo about Bowen v. Kendrick seems the ‘dumbest.'”
3. How about a transnationalist? You one of those?
Sen. John Cornyn (R-TX) detailed Obama appointee Harold Koh’s beliefs on transnationalism and asked Kagan if she is one. (Koh, a top lawyer for the State Department, riles up conservatives. For more, read this.)
Kagan’s reply:
I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.
Cornyn asked the “most significant cases” decided by the high court since she graduated from law school.
Kagan cited each case by name, highlighting the affirmative action in higher education decisions in 2003 and the 1992 and 1997 decisions related to “the constitutionality of abortion restrictions and a physician-assisted suicide ban under the Due Process Clause of the Fourteenth Amendment.” Kagan also cited cases which made it a crime to possess a gun in a school zone. She talked about cases about medical marijuana and the Violence Against Women Act which she said were “significant for their discussions of the limits on Congress’s Commerce Clause power.”
Cornyn asked Kagan about “the most poorly reasoned” case in the last 50 years, but she wouldn’t bite. “I do not think it would be appropriate for me to grade recent decisions of the Supreme Court, as the status of those cases as precedent and their application to new factual circumstances are issues that may come before the Court,” she said. But she said the 1944 case of Korematsu v. United States about Japanese internment camps during World War II was poorly reasoned.
Cornyn asked the most influential justice on the Supreme Court in the last century, and Kagan chose Oliver Wendell Holmes.
4. No comment!
Asked by several Republicans about specific cases, Kagan wrote she did not think “it would be appropriate” to comment about her communications with the White House or “internal Executive Branch deliberations.”
Cornyn also asked Kagan if she would be independent from the Obama White House. Her answer: of course! “If confirmed, I would at all times exercise my independent judgment in considering the cases that come before the Court,” she said.
5. Answer George Will’s questions, please.
Sen. Jon Kyl (R-AZ) told Kagan in his written questions that conservative Washington Post columnist George Will had some queries of his own, and asked the nominee to address them.
Kyl asked: “Can you name a human endeavor that Congress could not regulate through the Commerce Clause, if it made some pretense that the endeavor has an effect on the national economy?” That’s a sort of gateway question about the constitutionality of health care reform, an important topic since nearly two dozen states are suing the federal government on these grounds.
In her answer, Kagan cites previous Supreme Court cases to conclude, “Congress could not regulate non-economic activity based on a mere ‘pretense that the endeavor has an effect on the national economy.'”
Kyl went on, “If courts reflexively defer to that congressional pretense, in what sense do we have limited government?” Kagan said the case she cited made clear courts should not “reflexively defer” to Congress. “Instead, courts must evaluate the nature of the activity that Congress seeks to regulate and the link between that activity and interstate commerce. In performing that evaluation, courts should be deferential to congressional fact-finding,” she said. (Read her answer in legalese here.)
