Kagan sailed through today’s hearings. She was well informed and well spoken; deferential without appearing craven or intimidated; and her sense of humor was on display. (Best example: during her discussion of terrorism-related legal issues with Senator Graham, he began a series of questions about the failed Christmas Day bombing of the plane headed for Detroit by asking where Kagan was on Christmas Day. Kagan: “like all Jews I was probably at a Chinese restaurant.” (Explanatory note: Many Jews go to a movie and eat dinner out on Christmas Day; usually Chinese restaurants are the only ones open.).)
It is hard to see anything in today’s hearing that could increase opposition to Kagan’s confirmation. But the vast majority of the Committee’s Republican Members – all of them other than Senator Graham, and perhaps Senator Hatch — seem pretty firmly set in their opposition.
A visibly tired Kagan seemed happy to have the day end. We’ll be back again at 9 am tomorrow.
Senator Cardin, one of the more junior Democrats on the committee, begins with a defense of Justice Marshall (a Maryland native). He talks about what Marshall achieved by convincing the Court to reject its decision in Plessy v. Ferguson authorizing segregation. And how that made our union more perfect.
Cardin says that protecting indivduals against abuses of power is crucial, and asks how the Constitution does that. Read More
Several times, Kagan has been asked her view of the scope of Congress’s power under the Commerce Clause. In the 1930s, a limited view of the Commerce Power was used to invalidate New Deal legislation. After President Roosevelt announced his proposal to expand the number of Justices, the famous “switch in time to save Nine” occured, and the Court repudiated its prior decisions and adopted a much broader view of Congress’s power.
That issue is back with a vengeance today. Read More
Fun moment of video when Sen. Grassley appears to ask Elana Kagan whether gun rights don’t come directly from God rather than the constitution.
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Senator Durbin brings up a question of tremendous real world importance that is almost never discussed in these hearings–our criminal justice system, and sentencing in particular.
He began with the disparate sentences under federal law for crack cocaine as opposed to powder cocaine (for example, an offense involving 1 gram of crack triggers the same sentence as one involving 100 grams of powder cocaine), and asks whether something should be done about it. (Those charged in cases involving crack are overwhelmingly the members of minority groups; that is not true of charges involving powder cocaine.) Read More
Senator John Cornyn, another skilled questioner (and former Texas Attorney General and Justice of the Texas Supreme Court), engages Kagan on constitional interpretation. Their exchange provides the best indication so far of how Kagan would approach this issue. Read More
Sharron Angle’s become almost notorious for ducking in-state interviews since her come from behind win in the GOP primary a few weeks ago. But we’ve just found out she’s going to sit down for an interview on Jon Ralston’s show this evening. So that should produce some interesting news.
Kagan has an extremely friendly exchange with Lindsey Graham about the legal issues arising from what Kagan agrees is the war in which the United States in engaged against Al Qaeda and the Taliban. Graham, of course, is the only Republican on the Judiciary Committee who voted to confirm Sonia Sotomayor. And he seems very happy with Kagan’s responses to his detailed questions about war-related legal issues.
One other issue comes up in Kagan’s discussion with Graham. Read More