Kagan Hearing - Live Updates
By Andrew Ramonas and Channing Turner | June 29, 2022 9:15 am

Supreme Court nominee Elena Kagan on day three of her confirmation hearings. (photo by Channing Turner / Main Justice)

Wednesday - 11:27 a.m.

Kagan received a lesson in congressional intent and judicial activism from Sen. Al Franken (D-Minn.) — the last speaker in her first round of questioning.

With conspicuous disappointment with the court’s rulings on mandatory arbitration in labor disputes, Franken drilled into an opinion by Justice Kennedy stating: “we need not assess the legislative history” — a remark Franken cited as disregard for congressional intent.

Kagan affirmed that she would use legislative history as a source to assess congressional intent if confirmed.

“Where the text is clear, a court should go with the text,” said Kagan. “Where the text is ambiguous, which often happens … the court surely would be helped if Congress spoke as precisely, as exactly and as comprehensively as it could.”

Franken then zeroed in on Citizens United, calling it an example of judicial activism and saying its unduly broad scope made it “unfair to the American people.”

“[Corporations] can spend billions,” he said. “They are going to spend it when we try to protect oil drilling in deep water … or Wall Street fraud. They’re going to spend their money against the consumer — the laws that protect our families and our homes.”

Franken further criticized the Supreme Court justices for extending the Citizens United decision beyond the more narrow question originally presented to the court.

In response, Kagan agreed that cases should be decided in the narrowest possible way.

“This leads to a kind of restrained decision making in which consensus can more easily be achieved and the most appropriate outcomes can be reached,” Kagan said.

Wednesday - 11:08 a.m.

Kagan said the Supreme Court didn’t give her an easy time when she argued cases before it as Solicitor General.

The nominee said in response to a question from Sen. Ted Kaufman (D-Del.) that everyone is equal before the court.

“One of things that I found remarkable in my time as Solicitor General as I walk into that court and I represent the government … people might think that the government is kind of favored in the court,” Kagan said. “Anything but.”

She also defended her time in the executive branch, invoking Justice Robert Jackson, who held various Justice Department posts from 1936 to 1941 including Solicitor General and Attorney General.

The nominee said the justice was “one of [her] favorite figures in Supreme Court history.” - AR

Wednesday - 10:38 a.m.

Amy Klobuchar (D-Minn.) seemed to subtly respond to Republican criticism of Kagan’s judicial experience by asking the nominee to speak on how her time as Solicitor General informed her judgment.

“You go up there, and you get to the podium, and there are nine people — every single one of them is so prepared to talk about the case, so into the case, so engaged, obviously so smart, and I think, trying to get it right,” Kagan said. “They know your briefs…what they want to hear you do is respond their questions. It’s only if you address the justices’ real concerns that you’re going to win your case.”

“We’ll consider those tips for those that go before you,” Klobuchar remarked.

Klobuchar also questioned Kagan on the practical consequences of Supreme Court decisions, alluding to the criticism in the senator’s opening statement of the Melendez-Diaz decisions, which forced forensic analysts to testify personally before the court in all cases. Kagan submitted an amicus brief as Solicitor General supporting looser regulations for testimony in a similar case.

“I was concerned about the decision just because, again, the practicality of all this new work for prosecutors,” Klobuchar said.

Kagan responded by suggesting the person most responsible for this evidentiary trend was Justice Antonin Scalia and said she would approach decisions with an eye for the “real-world, practical effect of a legal rule.” - CT

Wednesday - 10:04 a.m.

Sen. Sheldon Whitehouse (D-R.I.) kicked off the morning questions, starting a third day of hearings for Supreme Court nominee Kagan.

Kagan said taking precedent into consideration when making decisions on the Supreme Court is important.

Whitehouse expressed frustration with the Citizens United decision, saying precedent wasn’t followed by the conservative court. Kagan said there are “competing views” on whether the court can reverse precedent under some circumstances.

“I do believe … that [undoing precedent] should be regarded with some caution,” Kagan said.

The Rhode Island senator also tried to get Kagan to elaborate on her remarks yesterday about Leegin Creative Leather Products v. PSKS, a 2007 Supreme Court decision that held that manufacturers could set price floors below which retailers cannot sell their products.

The nominee said yesterday that laws that protect consumers and ensure competition among businesses must be upheld, adding that “economic theory and economic understanding” must also be taken into account.

But today she declined to give a more thorough analysis of antitrust issues surrounding the case saying, “I’m not an antitrust expert.” - AR

8:34 p.m.

The hearing will continue Wednesday morning with questions from Democratic Sens. Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Ted Kaufman of Delaware and Al Franken of Minnesota.

8:27 p.m.

Kagan said she would give deference to Congress if she is confirmed to the Supreme Court.

Sen. Benjamin Cardin (D-Md.) said it is important for the court to give deference to Congress when it rules on civil rights and voting rights laws. He expressed frustration that justices did not give deference to Congress in rulings like the Citizens United decision, which he called a “step backwards.”

The Maryland senator also noted the importance of interpreting how the intent of the framers of the Constitution would apply to the present time. The nominee said the Constitution’s basic principles are relevant “throughout the ages.”

“I think that the Constitution is a kind of genius document,” Kagan said.

Cardin said he thinks Kagan will “follow in the best traditions of the Supreme Court.” - AR

7:12 p.m.

Sen. Tom Coburn (R-Okla.) took a confrontational tone with Kagan, at one time holding up placard with excerpt from a letter written by the nominee to Specter regarding the use of foreign law as a guide for court decisions.

The placard read: “ ‘There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions’ such as the Eighth Amendment.”

“Here’s your quote — exactly,” said Coburn, holding up the sign. “Please explain to me why it’s OK sometimes to use foreign law to interpret our Constitution, our statute and our treaties.”

“For the most part, I wouldn’t try to convince you of that because I don’t think it is appropriate as precedent or as an independent bases for support in the vast majority of legal questions,” Kagan said.

Coburn then criticized the Supreme Court for abdicating its duty to prevent Congress from overstepping its authority under the Commerce Clause, which governs interstate trade and commerce with other countries.

“You can’t solve the problem now, but you helped create it,” said Coburn, referring to the court. - CT

6:29 p.m.

Solicitor General Elena Kagan on the second day of her confirmation hearings for the Supreme Court. (photo by Channing Turner / Main Justice)

Kagan said efforts to eliminate the disparity between crack and powder cocaine sentences should be left to Congress.

Sen. Richard Durbin (D-Ill.) said the 100-to-1 sentencing ratio for crack and powder cocaine offenses is a “significant cause” of what Justice Anthony Kennedy told the Democratic senator was a “badly broken” incarceration system.

The Senate passed a version that would establish a new 18-to-1 sentencing ratio. But the House has its own legislation that would eliminate the current decades-old sentencing law and hasn’t acted on the Senate’s bill.

The nominee worked on Clinton administration efforts to reduce the ratio. But she said the court is not the place to press for changes in sentencing policies.

“I think justices on the Supreme Court are appropriately interested in these kinds of questions,” Kagan said. She added: “But it is a kind of interest that I think has to be advanced in conversations like the kind he had with you.” - AR

6:04 p.m.

What began as a quiz on the constitutional amendment process administered by Sen. John Cornyn (R-Texas) turned into an exhortation for Kagan to honor precedent in cases of Second Amendment rights and Citizens Untied if confirmed.

Cornyn took pains to extract from Kagan an affirmation that the Constitution’s meaning could only be changed through the Article V amendment process. Kagan, however, tenaciously insisted that the way in which justices apply the text of the Constitution can alter its meaning as applied to new facts and circumstances.

“It’s the genius of the Constitution that not everything was set forth in specific terms, bus instead certain provisions were phrased in a very general way,” Kagan said. “The Constitution does not change … but it does apply to new facts and new circumstances all the time, and in that process … development of our constitutional law indeed does occur”

However, Kagan said she did not view the document as a “living Constitution.”

“I don’t particularly think that the term is apt, and I don’t like what people associate with it,” she said. “I think the job of constitutional interpretation … [is] a highly constrained role.”

Cornyn built off this statement to address the issue of preserving precedent in cases like Heller — which established an individual right to possess firearms — and the Citizens United decision. He explicitly referenced the statements of Justice Sonia Sotomayor during the hearing on her confirmation last year and suggested her testimony contradicted the dissention opinion she authored in McDonald v. Chicago, a decision reached earlier this week on the constitutionality of state gun-control statutes.

“If the doctrine of precedent enabled you to overturn a decision you thought was wrong, it wouldn’t be much of a doctrine,” Kagan said.

5:13 p.m.

Kagan said freedom of speech is not absolute in response to a question from Sen. Charles Schumer (D-N.Y.) about Supreme Court rulings on cases like the Citizens United decision.

Schumer said it was “confounding and deeply troubling” that the court used the first amendment to invalidate limitations on corporate funding of broadcasts for political campaigns. The nominee argued against the decision as Solicitor General.

“If you yell fire in a crowded theater or you yell into a … cardiac victim’s ear, nobody’s going to [say it is protected speech],” Kagan said.

The New York senator also asked Kagan to clarify what laws and resources she would use to make decisions on the court.

The nominee said the Constitution would be her primary tool on the court. But she said international laws and other resources could be used in making some decisions.

“Judges should keep their minds open to a variety of sources,” Kagan said. - AR

4:38 p.m. “Like all Jews, I was probably at a Chinese restaurant.”

Kagan’s back-and-forth with Sen. Lindsey Graham (R-S.C.) took on a more congenial tone but failed to mask the penetrating nature of the questions the senator launched at the Supreme Court nominee.

Graham zeroed in on the controversial issue of detainees in the war on terror, urging Kagan — as he did in her earlier confirmation for Solicitor General before the committee — to speak on the policies she defended as Solicitor General.

“The problem with this war is that there will never be a definable end to hostilities, will there?” Graham asked, referring to the policy that allows the government to hold enemy combatants in wartime until hostilities cease.

“That is exactly the problem,” said Kagan. “That is a question that I believe has not been answered.”

Kagan said that, should Congress and the president work together to find a workable policy, she would give it a greater deference as a Supreme Court justice.

Quoting Attorney General Eric Holder, Graham said the battlefield of the war is “the hearts, the minds and wherever al-Qaeda may reside,” questioning whether Kagan would agree with Holder’s policy in combating terrorism.

“I still agree with the Attorney General,” Kagan responded.

Graham then cited the attempted bombing on Christmas day last year, asking the nominee, “Where were you at on Christmas day?”

“Like all Jews, I was probably at a Chinese restaurant,” Kagan retorted.

She went on to say she had never dealt with the question of criminalizing enemy combatants or the operation of military commissions in her time as Solicitor General, but also said that she supported the Obama administration’s approach and defers to the Attorney General on the issue. - CT

4:13 p.m. Specter and cameras in the courtroom

A testy Sen. Arlen Specter (D-Pa.) prodded Kagan to disclose how she would rule if confirmed to the Supreme Court.

Specter, who cut off Kagan on many of her answers, pushed the nominee to speak about how she would view the Citizens United case if she was a judge. The nominee said she could only speak to the position she took as Solicitor General.

“It is a little bit difficult to take off the advocate’s hat and put on the judge’s hat,” Kagan said.

The senator expressed frustration with the confirmation process for Supreme Court nominees and their answers to senators’ questions.

He said if Supreme Court proceedings were televised that might change. Kagan said she is in favor of televising arguments.

“I think if the public understood what was happening there would be this strong temptation to stand behind what was said at these confirmation hearings,” Specter said.

Kagan said televised Supreme Court arguments would mean that she would “have to get [her] hair done more often.”

“A little humor would do a lot of good,” Specter said. - AR

3:38 p.m. Grassley and Second Amendment rights

Sen. Chuck Grassley (R-Iowa) used his time to press Kagan on her views regarding the Second Amendment and delve into the nominee’s more obscure writings to discuss her judicial philosophy.

He quoted the nominee as writing that she was “not sympathetic” to those critical of a handgun ban in Washington, D.C. and probed Kagan on the 2008 Heller decision establishing the right for individuals to possess private firearms. Grassley even tried to tack down whether she felt the Second Amendment’s guarantee of the right to bear arms is an inherent or constitutionally provided right.

“If we are endowed by our government with certain rights, the government can take those away from us,” he said. “Whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, the government cannot take away something that is inherently ours.”

Kagan responded by affirming that she will abide by the court’s precedents.

“I have absolutely no reason to think that the court’s analysis was incorrect in any way,” Kagan said. “I accept the court’s analysis and will apply by it going forward.”

Grassley also brought up her time in Oxford where she wrote a thesis paper suggesting judges could at times defer to the public’s “demands of social justice.”

“All I can say about that paper is that it’s dangerous to write papers about the law before you’ve spent a day in law school,” Kagan said. “I would ask you to recognize that I didn’t know a whole lot of law then.”

“If I accept your answer, it would spoil a whole five minutes ahead,” joked Grassley. “You’ve learned a lot by going to law school.” - CT

1:35 p.m.

The committee has recessed for lunch and votes. They will resume later this afternoon.

1:29 p.m. Feingold presses on campaign finance

Kagan said the Citizens United decision was an “unusual action” in response to questions from Sen. Russ Feingold (D-Wis.)

Feingold was the co-author of the 2002 campaign finance legislation that was partially overruled in the Citizens United case. Feingold and other Democratic senators have expressed frustration with the Supreme Court ruling, which invalidated limitations on corporate funding of broadcasts for political campaigns. Kagan as Solicitor General represented the government in support of the law during oral arguments last year.

“It’s obviously unusual whenever the court reverses a precedent,” Kagan said.

The Wisconsin senator also asked the nominee to discuss her views on the role of the court.

Kagan said the court has a “very important role in policing the constitutional boundaries.”

“There are some times when the court does have to step in and police those boundaries and make sure the president doesn’t usurp the authority of Congress or vice versa,” Kagan said.

She added: “No person however grand, however powerful is above the law.” - AR

1:06 p.m. Kyl questions Kagan on immigration

Sen. Jon Kyl (R-Ariz.) questioned Kagan on her suggestion as Solicitor General that the Supreme Court hear an Arizona case regarding the hiring of undocumented immigrants.

According to Kyl, Kagan’s counsel proved pivotal in the court’s decision to grant certiorari and hear the case.

“My guess is … that without the [Solicitor General] taking the position that you did, that it’s much less likely the court would have taken that case,” Kyl said.

Kagan clarified her interest in the case as one pertaining to the legal issue of federal preemption and denied any bias regarding the case’s greater context in immigration regulation.

“The reason for the court to take this case was not only that it was wrong — that the Arizona statute was statutorily preempted — but also … for the Supreme Court to set down its view on what the federal statute preempts,” Kagan said. “This is a significant issue … as to whether the [federal] statute prevents a state from doing this.”

The case, Chamber of Commerce of the United States v. Candelaria, involved an Arizona statute that required businesses to compare the Social Security numbers of employees with a national database to confirm their immigration status. Corporations found to have knowingly hired illegal workers could then have their state licensing revoked.

Kyl said the issue would come up again in his second round of questioning.

Following up on concerns he expressed in his opening statement, Kyl also questioned Kagan about her former boss and legal hero, Thurgood Marshall. He focused on bench memos the nominee had written during her tenure as Marshall’s clerk — which he characterized as “not just pragmatic, but almost political.”

In response, Kagan said clerks tended to “channel Justice Marshall,” attempting to anticipate what kind cases the justice would accept. The memos did not fully reflect her views, she said. - CT

12:25 p.m. Feinstein asks about terrorism and detention of suspects

Sen. Dianne Feinstein (D-Calif.) probed the Solicitor General on her views on executive power.

Kagan said the Solicitor General’s office is working under the assumption that the executive branch is operating with authority from Congress.

“For the most part, the presumption is that if the president is told by Congress that he can’t do something, [he] can’t do something,” Kagan said.

Feinstein also asked the nominee to elaborate on the president’s ability to detain terrorism suspects. Kagan said she has worked on the issue in the Solicitor General’s office, which supports the authority.

The nominee said the Supreme Court will likely take up cases about terrorism, including definitions questions about the boundaries of the battlefield and the definition of an “enemy belligerent.” - AR

11:46 a.m. Hatch presses Kagan on how she presented the case during oral arguments for Citizens United

Sen. Orrin Hatch (R-Utah) probed Kagan’s tenure as Solicitor General for her views regarding the Supreme Court’s recently decided cases, clamping down on the corporate political speech at issue in Citizens United.

In response, Kagan said she held her views as a Solicitor General separate from her personal beliefs or the beliefs she might espouse as a judge.

“I want to make a clear distinction between my views as an advocate and any views I might have as a judge,” Kagan said. “When I stepped up to the podium, as an advocate, I thought that the U.S. government should prevail in that case.”

However, Hatch held firm to the court’s extension of First Amendment protection to corporate political speech. He cited Kagan’s counsel as saying the Federal Election Commission’s application of the restrictive statute could extend to many types of organizations and forms of speech, including political pamphleteering — a hallmark of the American election process, Hatch said.

“I’m not really blaming you for your argument, nor am I blaming the person whose job is to defend this statute. I’m just saying what happened,” he said.

Hatch asked the nominee whether her decisions as a justice would hinge on a “jurisprudence of minutiae” that drew arcane delineations between where and whom the First Amendment protects.

“I’m getting a little tired of people mis-stating what Citizens United is all about,” he said. “In Citizens United, the court listed at least 25 precedents dating back almost 75 years … specifically that protect corporate political speech.”

Hatch said he believed the case was correctly decided and suggested that the arguments Kagan made contradicted the core value of the First Amendment.

Kagan, however, refused to give an objective evaluation of the case, stating that her role as a Solicitor General had dictated her entire approach.

“When I prepare an argument, the first person I convince is myself,” she said. “I did believe that we had a strong case to make. I tried to make it to the best of my ability … in the Solicitor General Office, we defend statutes that Congress determines. - CT

11:09 a.m. Kohl questions Kagan on Leegin

Kagan deflected questions from Sen. Herb Kohl (D-Wis.) on how she would make decisions on the Supreme Court.

“All I can say … is that I will try to decide each case that comes before me as fairly and objectively as [possible],” Kagan said.

Kohl, who chairs Senate Judiciary Committee antitrust subcommittee, also asked Kagan about her views on business competition. The Democratic senator said consumers have had fewer choices recently after Supreme Court decisions like Leegin Creative Leather Products v. PSKS, a 2007 Supreme Court decision that held that manufacturers could set price floors below which retailers cannot sell their products.

The nominee said laws that protect consumers and ensure competition among businesses must be upheld. But she said “economic theory and economic understanding” must also be taken into account. - AR

10:37 a.m. Sessions and Harvard’s policy on military recruiting

Ranking Republican Jeff Sessions of Alabama took an aggressive stance, highlighting what will likely be a constant line of attack from GOP members: Kagan’s role in military recruiting policy as dean of Harvard Law School.

Sessions launched a into series of questions that accentuated Kagan’s part in dictating military recruitment policy as the dean of Harvard Law School. He said that by prohibiting recruiters from joining Harvard’s Office of Career Services she had violated the Solomon amendment — a law requiring schools to offer equal treatment to military recruitment on their campuses as other career recruiters.

Kagan defended her policy by saying the military had always had “excellent access” to students through the school’s veteran’s organization.

“In fact, the veteran’s organization did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard during that recruiting season,” she said. “And military recruiting went up that year, not down.”

Sessions, however, remained unconvinced.

“I’m a little take aback by the tone of your remarks because its unconnected with reality,” Sessions said. “In fact, you were punishing the military.”

Sessions also highlighted the importance of unbiased legal interpretation before pressing on Kagan’s policy work for the Clinton and Obama administrations — saying he “would have to classify [Kagan] as someone in the theme of a legal progressive.”

Kagan responded by dismissing the hard-and-fast labels politicos place on judges and lawyers.

“People should be allowed to label themselves,” Kagan said. “I am not quite sure how I would characterize my politics, but one thing that I do know is that my politics would be, must be, have to be separate from my judgment.” - CT

9:58 a.m. Leahy questions on Harvard military recruiting

Kagan clarified her decision to bar military recruiters from using the career placement office at Harvard Law School, responding to questions from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).

Kagan, who was Harvard Law School dean from 2003 to 2009, barred the recruiters because the military’s ban on openly gay soldiers violated the school’s anti-discrimination policies. But Harvard agreed to allow military recruiters to recruit students via a student group — the Harvard Law School Veterans Association.

“I am confident that the military had access to our students and our students had access to the military throughout my entire deanship.”

The nominee, who is the Solicitor General, also said she would recuse herself from any case before the Supreme Court where she was counsel of record, signed a brief on the case or where she officially approved an action on the case. She said there will be about 10 Supreme Court cases that she may have to recuse herself from next year. - AR

9:15 a.m.

The second day of the confirmation hearings for Supreme Court nominee Elena Kagan have just gotten underway. Today, senators get to question the nominee for 30 minutes each.

The order of Senators will be as follows: Patrick Leahy (D-Vt.); Jeff Sessions (R-Ala.); Herb Kohl (D-Wis.); Orrin Hatch (R-Utah); Dianne Feinstein (D-Calif.); Charles Grassley (R-Iowa); Russ Feingold (D-Wis.); Jon Kyl (R-Ariz.); Arlen Specter (D-Pa.); Lindsay Graham (R-S.C.); Charles Schumer (D-N.Y.); John Cornyn (R-Texas); Richard Durbin (D-Ill.); Tom Coburn (R-Okla.); Benjamin Cardin (D-Md.); Sheldon Whitehouse (D-R.I.); Amy Klobuchar (D-Minn.); Ted Kaufman (D-Del.); Al Franken (D-Minn.)

First up, Leahy.



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