Herb Kohl is one of the few non-lawyers serving on the Judiciary Committee, and his questions typically have a common-sense touch. But, even though Kohl is a Democrat, his questions presented some traps for the nominee, and she had to leave Kohl disappointed.
For example, Kohl asked what Kagan was “passionate about.” She said that she didn’t think it was appropriate for a judge to say that her goal was to address a particular type of case or accomplish a particular agenda. The judge’s job is to decide fairly the cases that come before her. Any other answer, of course, would have had Republicans pounding the table about “coming to the Court to implement a particular agenda.”
Kohl also tries to get Kagan to talk about her judicial philosophy. After she gives a plain vanilla response about making fair and reasonable decisions, Kohl asks her which Justices she admires. She says she admires Justice Stevens but that isn’t to say she’d decide every case just like Stevens. She says she doesn’t feel she should say anything about current members of the Court.
Kohl is frustrated, although probably not surprised by the nominees refusal to commit herself, saying only “my oh my oh my.”
He them asks Kagan to choose between two approaches to constitutional interpretation–Justice Scalia’s originalist approach and Justice Souter’s comments (made recently at Harvard Law School) explaining the flaws in originalism. Kagan says it isn’t an either or choice–in some circumstances original intent is determinative, in others it is not. Judges should look to a variety of sources. No exposure in that answer either.
