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Snapshots from the morning session of the Kagan hearings

We've just resumed the Supreme Court confirmation hearings for Elena Kagan. Here are a few thoughts on the morning session.

-Kagan did well under sometimes intense questioning. Particularly intense was her exchange with Sen. Jeff Session (R-Ala.), who was visibly exasperated by what he thought was Kagan's less-than-forthright explanation of her decision to limit on-campus privileges for military recruiters.

-Kagan distanced herself from Justice Thurgood Marshall, for whom she clerked during the 1980s. Under questioning from Sen. John Kyl (R-Ariz.), who was asking her to explain Marshall's approach to judging, Kagan firmly but politely responded: "If you confirm me, you'll be getting Justice Kagan. You won't get Justice Marshall." Later in her exchange with Kyl, she defended her former boss and his life's work fighting racial discrimination.

-Also in response to Kyl, Kagan seemed to distance herself -- as did Sonia Sotomayor -- from President Obama's "empathy" standard. Asked whether a judge's heart should come into play when making decisions, Kagan responded: "At the end of the day, what a judge must do is apply the law. It's law all the way down."

-Kudos to Sen. Dianne Feinstein, Democrat of California, for asking Kagan about some of the conservative national security and executive power positions she staked out as solicitor general. But like so many nominees before her, Kagan essentially dodged -- although in a very polite and unoffending way. But it was a dodge nonetheless. She offered Feinstein a recitation of the Supreme Court precedent that generally governs the court's analysis of executive power. Kagan gave almost exactly the same explanation as did John G. Roberts Jr. during his confirmation hearing nearly five years ago: the president's powers are at their highest when he acts in accordance with congressional enactments; they're at their lowest when he appears to act against an explicit congressional mandate.

So are Kagan and Roberts in sync on this question? Will she move the court to the right, given that she's replacing liberal stalwart John Paul Stevens? It's impossible to tell. After all, the matter of how much power the president may legitimately wield depends on his actions and how clearly Congress has spoken on a particularly matter. Modern conservatives generally give the president -- a Republican one, at least -- more leeway in exercising commander-in-chief powers; Democrats and liberals are more skeptical -- especially of those elected under the GOP banner.

By Eva Rodriguez  | June 29, 2010; 1:58 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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Next: Kagan: She's no Barak


Rodriguez you laughable WaPo hack, Jeff Sessions destroyed the woefully unprepared Elena Kagan. Save your head games for people who are not watching the hearings.

Sotomayor the phony said she was for the Second Amendment and gun rights too. Yesterday she sided against gun rights.

Posted by: screwjob16 | June 29, 2010 3:04 PM | Report abuse

We can only hope that Kagan might be to the right of Stevens. When four of nine justices blatantly vote to judicially abolish the second amendment, as they did yesterday, the liberal left has demonstrated how close they are to abolishing fundamental rights guaranteed by the Constitution.

Posted by: doug7772 | June 29, 2010 3:10 PM | Report abuse

Kagan will be a reliable liberal vote. I doubt she will "tilt the court to the right."

I don't look for any great legal insights from her. She seems to be an affable lightweight.

Posted by: Curmudgeon10 | June 29, 2010 4:34 PM | Report abuse

This the other day the court voted 5-4 for an open season on humans. I look forward to what Kagan can add to the propensity of the court to sanction population control.

Posted by: rusty3 | June 29, 2010 4:34 PM | Report abuse

John Paul Stevens, Associate Justice,

President Ford nominated him as an Associate Justice of the Supreme Court, and he took his seat December 19, 1975.
Justice Stevens, appointed by an Eagle Scout of a President, became the leader of the LEFT wing of the Court. If there was a thing called Justice, turnabout would be fair play.
Ms Kegan steps down, and Justice Stevens replacement ends up being the Right wing leader of the court for the next 30 years.
After all, it has happened before

Posted by: commboss | June 29, 2010 4:47 PM | Report abuse

Hate to tell ya, this court is already firmly tilting to the right.

It would be nice for a sinkhole to appear, just to get SCOTUS to level out, not tilting either right or left.

Posted by: tony_in_Durham_NC | June 29, 2010 5:07 PM | Report abuse

Kegan's only qualification for the court is that she is a lesbian. Another Obama gift to the special interests. The senators should be grilling her on how her homosexuality will effect her rulings. It is just a shame that Stevens didn't die while President Bush was still in office.

Posted by: oldno7 | June 29, 2010 6:37 PM | Report abuse

Sen. Sessions, unconfirmed as a judge in his own right because of probable racism, rose to the challenge of his position as ranking minority committee member by attacking a deceased hero of the civil rights movement-obviously unable to defend himself. I presume he feels the same way about Abraham Lincoln. Put more bluntly, this is a little man who looks and sounds more and more like Harry Potter's Golum.

Posted by: BBear1 | June 29, 2010 7:16 PM | Report abuse

Leftists lie, it's what they do..

Posted by: wewintheylose | June 29, 2010 7:34 PM | Report abuse

The only thing that can be said for Kagan is the same that can be said for Ginsburg and Sotomayor: they are mediocre legal minds at best and if liberal Presidents want to continually place mediocre, line-toeing lawyers on the Court, that's their problem.

Stevens was appointed by a Republican, but his opinion in Heller and then McDonald (announced yesterday) was the product of a confused, disorganized mind, as Scalia so incisively documented in his opinion.

Posted by: theduke89 | June 29, 2010 8:40 PM | Report abuse


Posted by: houston123 | June 29, 2010 9:52 PM | Report abuse

We'll find out once she gets in. Until then, pointless speculation, except of course for the usual haters.

Posted by: laboo | June 29, 2010 10:33 PM | Report abuse

"Kagan gave almost exactly the same explanation as did John G. Roberts Jr. during his confirmation hearing nearly five years ago: the president's powers are at their highest when he acts in accordance with congressional enactments; they're at their lowest when he appears to act against an explicit congressional mandate."

This is just Jackson's concurrence from Youngstown. Any first year law student has this memorized.

Posted by: anon621 | June 29, 2010 10:38 PM | Report abuse

I have it on good authority that Kagan is secretly a staunch conservative...a Republican Mole in the Democrat's it possible that she has pulled the wool over Obama's eyes?

Posted by: JCM-51 | June 29, 2010 11:41 PM | Report abuse

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