Senators Grope For Kagan�s Philosophy, But Supreme Court Nominee Deflects

Investors (Link) - Sean Higgins (June 29, 2010)

Supreme Court nominee Elena Kagan did little to fill in the many blanks about her judicial philosophy during the first day of questioning in her Senate hearings on Tuesday. Time after time, she cheerfully deflected questions using one rationale or another.

At times Kagan declined to even affirm statements she had made as President Obama�s solicitor general or as a top lawyer for the Clinton administration. She claimed she was merely doing her job and her statements and writings didn�t necessarily reflect her own views.

But in the confirmation game, no news is good news. Big Democratic majorities mean Kagan�s approval is virtually assured.

Recruiter �Runaround�

The sharpest exchanges came as Republicans probed her efforts to bar military recruiters from Harvard while she was the law school�s dean. Alabama Sen. Jeff Sessions, the panel�s top Republican, accused her of creating a hostile environment for the military and treating them in �a second-class way.�

Kagan claimed she was trying to balance recruiters� needs with Harvard�s anti-discrimination policy given the military�s �don�t ask, don�t tell� policy regarding gays.

For a while the recruiters were officially barred but allowed to work via a student veterans group on campus. Eventually Kagan relented and gave full recognition to the recruiters after the federal government threatened to cut off school funding. Sessions accused her of giving recruiters the �runaround.�

�Congress frankly was very frustrated at the law school. It passed four or five versions of the Solomon Amendment (which prevented schools from barring recruiters) to get around every maneuver� by the school, a clearly irritated Sessions said.

Kagan argued repeatedly that she believed allowing recruiting via the student group satisfied the law.

�Nobody ever suggested Harvard be sanctioned in any way,� Kagan said. �The only question was whether Harvard should continue to remain eligible for federal funding.�

Kagan was more circumspect on other issues, though she did say that she would support bringing cameras in to record arguments before the Supreme Court.

Silence Is Golden

Otherwise senators tried largely in vain to pin the nominee down on specific matters. She was at least bipartisan in this regard, providing equally opaque answers to Republicans and Democrats.

When Sessions highlighted comments by her colleagues that identified her as a progressive, Kagan reacted as though she wasn�t certain what they were talking about.

�I am not sure how I would characterize myself� politically, she said.

Sen. Orrin Hatch, R-Utah, tried to probe her thinking on campaign finance laws. As solicitor general, Kagan argued for prohibiting corporate issue ads during elections, even to the point of banning election-related books and pamphlets.

She indicated that that was her job as a member of the administration, not to use her own views.

�We were defending the statute as written,� Kagan said.

Sen. Dianne Feinstein, D-Calif., wanted to know when it�s appropriate for the court to overturn a federal statute.

�It is important in those cases to try to determine what Congress� intention was,� Kagan said, adding that sometimes that�s not so easy so courts have to improvise.

Sen. Jon Kyl, R-Ariz., asked her if a person�s political or economic power � �a big guy or a little guy� � should matter in deciding a case.

�Courts have to be level playing fields. Everybody has to have an opportunity to go before the court and to get equal justice,� Kagan said.

And so on.

When Sen. Herbert Kohl, D-Wis., asked about a 1995 article in which Kagan said Supreme Court confirmation hearings had become a �vapid and hollow charade� and that a franker discussion of judicial philosophy would be better, she retracted the piece.

�I got some of the balance off,� she explained.

Kohl persisted, noting she wrote that it was fair to ask nominees what direction they would move the court.

�It is a fair question,� Kagan said.

�I just might not get an answer,� quipped Kohl before laughing and moving on to the next question.