Gavel Grab

Solicitor General Elena Kagan backed away today from her earlier advocacy of more candid and specific discussion by Supreme Court nominees on their constitutional views. But she did offer some thoughts on the landmark Citizens United case.

In the second day of her confirmation hearings, Kagan was asked by Sen. Patrick Leahy, the Senate Judiciary Committee chairman, about the case. A day earlier, Democrats had derided the ruling as “conservative judicial activism.”

The 5-4 court majority struck down key restraints on corporate political spending. Kagan, who had argued the Obama administration’s case in defense of the limits, told Leahy that in preparing for the oral arguments, she had convinced herself of the correctness of the position she had taken, according to a New York Times article.

“I did believe that we had a strong case,” a CBS News blog quoted her as testifying.

Generally, however, Kagan said it would not be appropriate for her to say how she might side on pending cases, or potential future cases, or even discuss past cases by grading high court precedents, saying those issues “might again come before the court.”

Overall, Kagan resisted efforts by Republican senators to depict her as a liberal activist and refused to accept the label of “legal progressive,” McClatchy Newspapers reported.

“I honestly don’t know what that label means,” Kagan told Sen. Jeff Sessions, the Judiciary Committee’ senior Republican. “My politics would be, must be, have to be completely separate from my judging,” said Kagan, who was a  adviser in the Clinton White House.

She got some of her toughest grilling over the temporary military recruiting ban she imposed as dean of Harvard Law School, according to the New York Daily News. Sessions accused her of treating the military “in a second-class way,” and said, “I feel like you mishandled that. I’m absolutely confident you did.”

“I have repeatedly said that I believe that the ‘Don’t Ask, Don’t Tell’ policy [toward gays serving openly in uniform] is unwise and unjust. I believed it then and I believe it now,” Kagan replied. She also said, “the military had access to our students and our students had access to the military throughout my entire deanship.”

On other hot topics, Kagan gave these replies:

• GUNS: She considers Supreme Court rulings that extended gun rights to be “settled law,” according to the Associated Press.
• ABORTION: When Sen. Dianne Feinstein, D-Calif., asked her about rulings that allowed regulations restricting access to abortion, Kagan replied that based on Supreme Court cases, “women’s life and women’s health have to be protected . . . in abortion regulation.” These protections, she said, are part of the “continuing holdings of the court,” the Washington Post reported.
• INTERPRETING THE CONSTITUTION: “In [some] cases, the original intent [of its framers] is unlikely to solve the question, and that might be …because we live in a world that’s very different from the world in which the framers lived,” she said, according to Politico. “In many cases, precedent is the most important thing.”
• EMPATHY: She did not associate herself with President Obama’s past statements about the role of empathy in judging, The Blog of Legal Times reported.
• COURTROOM CAMERAS: It would be a “terrific thing” to broadcast oral arguments before the Supreme Court, she said.

When Republican Sen. Jon Kyl was asking questions about judging and the liberal Justice Thurgood Marshall, for whom she clerked, Kagan said, “I love Justice Marshall, he did an enormous amount for me, but if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall.”

You can learn background about Kagan and her nomination from Gavel Grab and Justice at Stake’s “Replacing Justice Stevens” page, and you can track her confirmation hearings by clicking on Justice at Stake’s Twitter page.