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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.

By Eva Rodriguez  | June 28, 2010; 6:04 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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It would be really nice - and honest - to remember that limiting military recruiters' access to Harvard's program for assisting any recruiters was NOT Kagan's decision. It was Harvard's decision, and long predated her accession to the position of Dean of Harvard's Law School. In other words, she was following the policy laid down by her employer.

Yes, she signed on to a "friend of the court" brief in support of the non-discrimination policy of Harvard and many other schools. That was her personal choice. But not allowing military recruiters to take advantage of Harvard's special services for employer recruiters was not her choice, but rather her duty in carrying out rules set down by Harvard. And she and Harvard did arrange for military recruiters to take advantage of the assistance of Harvard's veterans association.

The military was never barred from Harvard's campus, nor from the Law School's campus. From what I've read, military recruiters had no difficulty in spreading their message at Harvard, even to Law School students. As for the military's attitude towards Kagan, she was invited in 2007 to address the students at West Point, which she did. She told them she had accepted their invitation in order "to thank all of you senior cadets — and to wish you Godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible." - hardly the remarks one would expect from someone who is "anti-military".

Posted by: vklip1 | June 28, 2010 9:33 PM | Report abuse

"5. We don't need an opening round of statements from the senators."

I agree. BUT somehow Ms Rodriguez missed the pretty blatant point that virtually all of the senators of the "party of Lincoln," starting with Ranking Minority Member and explicit Klan supporter Jeff Sessions, went far out of their way to show their hostility to the idea that uppity people should have access to the same rights as white men.

What is not clear is whether they think the clock should be turned back to the time of Plessy v. Ferguson or to the time of Dred Scott.

Posted by: edallan | June 29, 2010 2:56 AM | Report abuse

Politics never dies

Posted by: taid | June 29, 2010 3:42 AM | Report abuse

I am one of those white men Edallen is talking about: "went far out of their way to show their hostility to the idea that uppity people should have access to the same rights as white men." Actually, I really just want everyone to be treated the same. I want to have that with a minimum of government intervention and an absence of Constitution-twisting. I have no objections to diversity as long as it is not turned into a national religion, and the basis for national policy, as it has been.

Posted by: hipshot | June 29, 2010 6:54 AM | Report abuse

To Edallen: Let's not forget that for hundreds of years slavery and white domination was "the national policy". As recent as 1954, blacks were in separate schools..1954! As an old white guy, I do remember few whites decrying that national policy. Women, blacks and other minorities were all relegated to the back of the bus. The late 50s and 60s brought a shattering light to that inequality.
Still from my viewpoint the old white men [ witness the Supreme Court] though the minority, are still hogging those front seats on the bus.

Posted by: jcinsanmig2008 | June 29, 2010 7:37 AM | Report abuse

Hey republicans?

The vast majority of Americans today are not seething with unspoken rage at Thurgood Marshall. You may feel that you have a "safe" forum for trashing him, but all you are doing is showing your base what hateful bigots you are.

Which is probably your whole point.

Posted by: losthorizon10 | June 29, 2010 9:00 AM | Report abuse

Where is the outrage about the Kagan hearings with the ole white southern guys trashing Thurgood Marshall..I was stunned at the return of the rhetoric of 1964---This is racist code and should be called out..Shame on the NYT for not reporting this disgusting behavior!

THe ole white guys slammed Marshall 35 times yesterday --Stunning return to code racist voting behavior! Could Dems please call them on this--the Press is corporate owned and not capabale reportingit!

Posted by: jetlone | June 29, 2010 9:22 AM | Report abuse

What are the chances of Elena Kagan being confirmed to the Supreme Court? 100% What was accomplished yesterday? Politicians posed to their supporters. Did anything yesterday advance the national interest? Northing. If anyone wants to see that our government is broken and the elites in congress are out of touch with America, all they have to do watch hearings for Supreme Court Justices. This is a sad state of affairs.

Posted by: jeffreed | June 29, 2010 9:33 AM | Report abuse

We conservatives are trying to move beyond the nation of victims to a nation of bootstrappers. By that I mean a nation of dynamic people who take advantage of their education opportunities. People who are can-do types, inventing, starting businesses, and looking for ways to advance themselves and the country. The merit-based society is our goal, and we are willing to accept an unequal outcome as one of the consequences.

Roll up your sleeves and get busy.

Posted by: hipshot | June 29, 2010 11:00 AM | Report abuse

I long for the day when a committee chairman & ranking minority announce upfront that there will be no long-winded and pointless grandstanding at hearings. That would, of course, take some courage.

Then, we need a courageous President who announces at the top of his State of The Union address that Congressionals refrain from leaping to their feet with predictable and needless applause. The speech would take 15 minutes. We might actually pay attention to the content. Congress will look a little less foolish and partisanship would be less instantly triggered.

Posted by: Rivery | June 29, 2010 11:26 AM | Report abuse

Hipshot, it's easy to understand your willingness "to accept an unequal outcome" in your drive for a bootstrapping economy. Just one question: have you ever been on the receiving end of an unequal outcome because of race, gender, or ethnic background?

I'd bet not. So your willingness in this regard isn't worth a dime because those unequal outcomes don't cost you one personal dime or moment of hardship and anger.

My guess is that you haven't got a clue about the real costs of those unequal outcomes. So move on now.

Posted by: kim4 | June 29, 2010 11:36 AM | Report abuse


You assume too much.

Rise above it and when you achieve you will have much to be proud of.

Posted by: hipshot | June 29, 2010 12:05 PM | Report abuse

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