The new Supreme Court Justice describes the tour of the Court she got from Chief Justice John Roberts, beginning with the robing room:
She noted each wooden locker, including that of Justice John Paul Stevens, had a plaque displaying the name of the individual justice. By the time the 15 minute tour was completed Roberts brought Kagan back to the robbing room and Stevens’ nameplate had been replaced with her own.
ADDED: From the same interview (which will be on C-SPAN this Sunday):
Now, a very great man once said That some people rob you with a fountain pen It didn’t take too long to find out Just what he was talkin’ about A lot of people don’t have much food on their table But they got a lot of forks ’n’ knives And they gotta cut somethin’
While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development. It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one. Should the Ninth Circuit Court upheld [sic] the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it....
If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.
Lyle Denniston reports on the oral argument today in Arizona Christian School Tuition Organization v. Winn. This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Man of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. Denniston begins his description with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.
This case has a substantive Establishment Clause issue — whether government is subsidizing religion —and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state.
The lawyer defending the Arizona program said it was like tax deductions. People take tax deductions for their contributions to religious organizations all the time. What's different about tax credits; The lawyer arguing against the program "said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."
If we view the tax credit as coming from the state's money, amassed by taxing, then the taxpayers who brought the suit probably have standing. But does that also answer the Establishment Clause question? Private citizens decide whether to contribute to a fund and pick from the qualified funds, not all of which exclusively fund religious schools, and the children getting the grants are choosing which school they want to go to. So there are 2 levels of private choice. And the definition of the funds is neutral and not religion-based.
Here's the complete transcript of today's argument.
April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."
What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?
But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.
I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:
2. A grip applied manually or mechanically to move something or prevent it from slipping.
3. A device, such as a tackle or lever, used to obtain mechanical advantage.
4. A position, as of a lever or one's feet, affording a means to move or secure a weight.
You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."
Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.
And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.
... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.
Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?
I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.
In 1993, President Bill Clinton nearly derailed his presidency with an early move to end the military’s ban on gay service members. Aides scrambled to craft the “don’t ask, don’t tell” policy as a compromise to get the politically radioactive issue off the new administration’s back.
President Barack Obama’s aides were intent, above all else, on not repeating that experience when it came to carrying out their campaign promise to open up the military to gays, so they moved cautiously.
Give them credit: They found a new way to screw things up.
The result: Obama now faces his own political crisis over the issue that threatens his support from key Democratic constituencies, undermines his relationship with the Pentagon and puts him in the odd position of defending a practice he has denounced as discriminatory and harmful to national security.
“It’s crazy that all this is happening 2½ weeks before a national election,” said Richard Socarides, an adviser to Clinton on gay issues during the ’93 fiasco. “The timing could not be worse for them, but it was fairly predictable that their strategy of postponing and delaying getting into this stuff was, at some point, going to come back to haunt them.”
So, this technique of going slow resulted in the troublesome matter heating up at exactly the point when they least wanted us to notice. Poetic justice.
The article has a lot of detail on the way the lawsuits progressed in court, including the decision not to appeal the 9th Circuit case (Witt) that would have brought the question of the constitutionality of DADT to the Supreme Court — with Elena Kagan, then Solicitor General, defending the statute.
Meanwhile, there was the Log Cabin Republicans' lawsuit, which was filed in 2004 and proceeded terribly slowly under Judge George Schiavelli (a Bush appointee). Schiavelli resigned in 2008, and the new judge, Virginia Phillips, a Clinton appointee, got things going, and she hit Obama with her decision that DADT is unconstitutional on September 9th of this year. Ironically, her decision was based on the heightened scrutiny standard announced in the Witt case that the Obama administration chose not to appeal. Funny, the way a President can't control the courts.
Phillips said it was hard to accept the Justice Department’s arguments that the law was constitutionally sound when Obama was telling audiences that “reversing this policy ... is essential for national security.”
“Obama’s made a lot of statements that we’ve been using as evidence against the government,” said Log Cabin attorney Dan Woods. “They’re in a very awkward position.”
"It's about what makes them feel ancient. It's not about how college students think at 18; it's about how we think at 40 and 50 and 60. It's about how we think about the markers we once drove into the ground to mark what we considered Now, and how alarming it is to note that they are farther away than they used to be."
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.
That's the famous quote I was looking for. But read on:
... Reason and free enquiry are the only effectual agents against error. Give a loose to them, they will support the true religion, by bringing every false one to their tribunal, to the test of their investigation. They are the natural enemies of error, and of error only. Had not the Roman government permitted free enquiry, Christianity could never have been introduced. Had not free enquiry been indulged, at the aera of the reformation, the corruptions of Christianity could not have been purged away. If it be restrained now, the present corruptions will be protected, and new ones encouraged. Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine, and the potatoe as an article of food.
So Dan Quayle gets a boost from Thomas Jefferson. (And so does Tom Coburn, who recently pressed Elena Kagan with the question: "If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the commerce clause?")
ADDED: I found the facsimile of the manuscript on line and determined that Jefferson did write "potatoe." See for yourself.
The judge is a Clinton appointee, Susan Bolton, and I remember, after it was reported or learned that she was a Clinton appointee, I remember everybody said, "Ah, but this woman, she's not a political judge. She's really not partisan judge. She's a fair judge." Oh, yeah, right. Right, right, right, right....
This judge has not ruled on the law. There is no racial profiling. We didn't make a [big] deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. This underscores why Sonia Sotomayor should not be on the Supreme Court. This underscores why Elena Kagan should not be on the Supreme Court, because they are activists. They have no judicial temperament, judicial experience, they're not judges. Well, Sotomayor pretended to be one on TV, I guess, but she's not....
This is all reacting to the sudden news of the opinion, which he hasn't read. It's 36 pages long, and "there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here":
[The judge has] bought the notion there was racial profiling and discrimination and all this happy horse manure that's part of the American left these days. So that's pretty much it. I guess the judge is saying it's not in the public interest for Arizona to try to defend itself from an invasion. I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision.
So... Judge Bolton just looks at the hot-button issue and emotes without attending to the text that should govern her opinion... asserts Rush Limbaugh as he takes a glance at the news of the decision and let's his feelings flow.
To quote Rush, out of context, from the middle of that rant: "Nothing, nothing in the media is real. There is nothing real. Media is not real. [Political ideology] is not real. It's all spin; it's all fake; it's all lies."
Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?
To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.
But, as I told my dinner companion...
Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!
... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.
Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.
I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s.
Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted — refudiated! — by the fact that you are still here writing this column.
They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.
And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.
The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.
They saw the candidates' lives whole... Broder's elevated diction goes wild. The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....
He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.
They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.
Look out! The floodgates have opened! Broder's going back to 1960!
It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.
Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?
I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.
That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his... eminent dome... his venerable cranium... his... nugatory noggin.
That's the argument. The Constitution should mean what it needs to mean so that we can get the things that we want from government — all those fine things that government deigns to do for us. The NYT tells us that some conservatives are "infuriated" because Kagan "refused to take the Republican bait and agree to suggest limits on that clause’s meaning." They're angry because they don't like the good things government does. Those bad old obstructionists. They're the Party of No.
The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.
"I am not there to entertain anybody," says Clarence Thomas, disparaging Supreme Court oral argument, in which he famously refrains from participating:
[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.
When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”
“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”
Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:
Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....
[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....
[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....
Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.
So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees, were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?
I'm not to pleased with the idea of relying on someone who distorted science to detect, for our benefit, the distortions of others. What we have is someone who put a political agenda ahead of science. We all need to heighten our skepticism about the way politicians and lawyers use our embrace of the authority of science to scam us.
[T]he tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns....
Much of this is the familiar hand-wringing over Citizens United. The editors admit that a lot of what happened isn't so bad, but it must be bad. It's the Roberts Court. So:
Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups.
Notice the big flip that's taken place in the last year or so. Liberals worry about constitutional rights getting in the way of legislation, and conservatives have cozied up to the notion of unwritten rights. For that to happen, everyone has to stop focusing on the right of privacy. Isn't it odd?
If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.
There's no other reference in the editorial to "judicial modesty" or Elena Kagan so I'm not sure what Kagan said that's being interpreted as a pledge by the new Justice to go in there and school the oldsters about what something really means. But everyone who has any sophistication about law knows that the Constitution trumps legislation and the question is the scope of constitutional rights. The nominees aren't asked to say — nor would they say — that they will interpret rights narrowly so that more legislation will survive or, conversely, that they will interpret rights expansively and nullify democratic decisionmaking. They're all asked to say and they all promise to say exactly what the rights really are and to enforce those rights despite pressure to allow the democratic choice to prevail and despite their own preferences about what ought to be legislated.
But the New York Times must, on schedule, wind up its readers about the conservatives on the Supreme Court. It's all such tedious sophistry.
I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:
Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.
Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses. We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)
I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.
Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....
I want to catch up with what I missed of the hearings, without slogging through all the video — the video is very nicely presented on line at C-Span — and in a form I can cut and paste for blogging purposes. But I can't find a transcript!
Could someone point me to a transcript of the first and second day hearings so before my thoughts come to rest on the theory that the media don't want us to be able to comb through the text?
The text! The text is important when we're talking about the Constitution!
I see Drudge is featuring this clip, just over one minute long, in which you hear Senator Coburn making a memorable, colorful point and — for the clip-viewer — overshadowing Elena Kagan's perfectly conventional profession of dedication to judicial restraint:
The clip is taken out of context, and now it has a vigorous life of its own.
I'm wondering what other clips are gathering strength on YouTube and what sort of political career they will have. Here are clips that went up today.
Here's the live stream. Yesterday was tedious beyond words, and, accordingly, I wrote nothing. Today, there's some potential for a spark or 2, and I'll do some live-blogging here.
8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.
8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.
8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.
8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific policy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination policy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination policy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.
9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!
9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).
9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.
9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.
9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."
10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.
11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.
11:56: Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.
12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.
