Chairman Leahy opens the hearing by playing the classic role of a defense lawyer: give your client a chance to address the evidence against her before she is confronted by hostile questioners. He ticks through a series of key issues.
How does the Constitution change? Only through the amendment process, says Kagan. The process of interpretation requires the Court to apply to modern-day circumstances the words and concepts that the Framers embodied in the document. “We are all originalists,” is Kagan’s memorable line (“originalism” is the mode of interpretation championed by Justice Scalia).
What about her article saying that nominees should be more forthcoming in confirmation hearings? Kagan says that the Senate’s role is important, and that nominees should explain how they approach legal issues, and should try to be forthcoming.
She points out that even in the article she said that nominees shouldn’t answer questions about pending cases, or cases that could come before the Court. But she says that she “had the balance off” by failing to include in the off-limits category questions that were “veiled” attempts to get the nominee to address legal issues that could come before the Court, and questions about the correctness of past decisions, because they could be reconsidered. So Kagan now appears to have moved firmly into the Roberts-Alito-Sotomayor approach, which will mean that she, like these other nominees, is not going to answer a substantial number of questions that will be posed to her over the next several days.
How will Kagan, now the federal government’s chief Supreme Court lawyer, decide whether to sit on cases involving her former client? She will not participate in (‘recuse herself” in legalspeak) from any case in which she’s appeared as a lawyer and from any case in which she “substantially participated”–but she’ll wait to define precisely what that means until she has a chance to consult with the other Justices.
Did Kagan’s decisions in the Clinton White House reflect her views or those of the President she served? The views of President Clinton, not her views (meaning that she can rebut arguments that her Clinton memos indicate how she’ll rule on the Court).
The Supreme Court’s decisions revitalizing the Second Amendment’s protection of the rights of gun owners? That’s “settled law” and “binding precedent” entitled to all of the respect accorded to precedent.
Military recruiting at Harvard? Military recruiters had access to the campus every day that she was Dean. And Leahy points to an op-ed written by a former Harvard student now serving in Afghanistan who was at Harvard when Kagan was dean. The op-ed describes a hand-written note from Kagan that the student received at his graduation conveying her personal thanks for his decision to serve. Kagan says that the only time she has cried since being nominated was when she read that op-ed.
