Elena Kagan completed her testimony before the Senate Judiciary Committee, and there seems little doubt that she is on her way to being confirmed as a Supreme Court Justice.

No one can seriously dispute her qualifications: she discussed a wide variety of legal issues (answering more than 500 questions) with authority, confidence and good humor. Senator Sessions described her as a person of “skill and intelligence.”

And Republicans haven’t yet been able to find an issue with “traction”–something with enough resonance with the public at large to convince moderate Democrats and moderate Republicans to consider opposing the nominee. Read More 

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? Read More 

One of the interesting aspects of a confirmation hearing is that it provides some insight into which constitutional issues a Senator finds important–or at least sufficiently important to justify a discussion with the nominee during the course of the hearing. Of course, the choreography of these discussions is always the same: the Senator raises an issue, the nominee recites the governing legal standard but says that she can’t address specific issues that might come before the Court, and the Senator moves on to the next issue. So we don’t learn much about the nominee (other than whether she has a broad knowledge of general constitutional law principles) but we do learn something about the Senator.

The list so far has been extensive. Read More 

Moving into the second round of questions, Senator Sessions focuses again on legal controversies relating to the Don’t Ask Don’t Tell policy.

He begins by saying that he was disappointed with Kagan’s testimony yesterday regarding military recruiting at Harvard Law Schoo. Read More 

Democratic Senators continue their critique by focusing on what they believe to be the Court’s lack of proper deference to Congress. The argument is that members of the Court are substituting their policy preferences for Congress’s decisions, and doing so by ignoring or rejecting determinations made by Congress when it enacts legislation.

They focus on two issues. Read More 

Minnesota’s Amy Klobuchar, a Democrat who headed the prosecutor’s office in Minneapolis before coming to the Senate, turns to another line of criticism against conservative legal ideology: the claim that Justices are like umpires, whose job is simply “call balls and strikes” (a metaphor that Chief Justice Roberts suggested during his confirmation hearing).

She asks Kagan whether the metaphor fits. Kagan says it does in some ways, but it doesn’t in others. Read More 

Senator Whitehouse, a Democrat from Rhode Island with experience as his State’s Attorney General and as the United States Attorney for Rhode Island as well, uses his questioning of Elena Kagan to launch a tough attack on the current Supreme Court.

His contention: Justices “with a particular mission and are selectively knocking out precedent that does not coincide with their ideological views.” Read More 

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