Kagan hearings: what you need to know about the first day
This is what we learned from the first day of the Kagan confirmation hearings:
1. Elena Kagan has an amazing ability to sit stone-faced for a long period of time.
2. Democrats apparently really, really like her, as evidenced by their effusive praise and absolute lack of criticism or skepticism of conservative positions she's taken as solicitor general on such matters as indefinite detention and anti-terrorism laws.
3. Republicans -- with the exception of South Carolina's Lindsey Graham -- apparently aren't aware of these conservative positions or are ignoring them because they don't fit neatly into their caricature of Kagan. Instead, they attempt -- unsuccessfully -- to paint Kagan as a scary, unqualified, anti-military activist who's eager to join liberal justices in rewriting the Constitution in their own image and for their own gains.
4. Democrats clearly want to turn the hearings into a forum about the evils of corporate America and the plight of the Little Guy. (This must be polling well in advance of the mid-term elections.) Virtually every Democratic senator advanced a version of this theme, often by blasting the Supreme Court over the Citizens United decision handed down earlier this year that nullified provisions of campaign finance law. BP and the gulf oil spill also made a guest appearance.
5. We don't need an opening round of statements from the senators. it isn't constitutionally mandated, wastes time and only serves to give senators a platform for useless grandstanding. By the time of the hearings, any nominee has met with every member of the committee; this was certainly true of Kagan, who could not have been surprised by anything the senators had to say in this open session. I wouldn't have a problem allowing the chairman and ranking member of the Judiciary Committee 10 to 15 minutes to lay out their thoughts, followed by a brief statement from the nominee. The question-and-answer session, which provides the best opportunity to get a good sense of the would-be justice, should start immediately thereafter.
What's most important going forward is that senators and the country get a chance to understand how Kagan approaches judging. In other words, that we get a glimpse into her mind. How does she balance conflicting constitutional prerogatives? Does she consider legislative history in interpreting statutes? Should foreign law have a role in deciding U.S. cases? These topics won't trigger the kind of intense exchanges that are sure to come when Kagan is questioned about her decision to limit on-campus privileges for military recruiters at Harvard Law School. But they will have a huge impact in how she decides cases that affect little and big guys alike.
| June 28, 2010; 6:04 PM ET
Categories: Rodriguez | Tags: Eva Rodriguez
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