Elena Kagan Confirmation Hearings Liveblog, Day 1

12:02 Jay Goodman Tamboli: Welcome, everyone. The press is still setting up for the hearings today in the Hart Senate Office Building.

12:03 Jay Goodman Tamboli: Today we’re expecting opening statements from the senators, so we’ll get a preview of what they’re going to ask Kagan about. There won’t be any direct questioning today, though.

12:08 :

12:24 Jay Goodman Tamboli: TVs in the hearing room are showing Kagan walking down the hall, on her way to the hearing room.

12:26 Jay Goodman Tamboli: Senators have started arriving. Orrin Hatch is here.

12:28 Jay Goodman Tamboli: Kohl, Feinstein, Feingold, etc…

12:30 Jay Goodman Tamboli: Kagan just walked in, flanked by Chairman Leahy and Ranking Member Sessions.

12:31 :

12:31 Jay Goodman Tamboli: Gavel. The hearing has begun.

12:32 Jay Goodman Tamboli: Leahy going over the rules. Opening statements, taking turns by party.

12:33 Jay Goodman Tamboli: Leahy is making a statement about the death of Senator Byrd, calling him the “fiercest defender of the Constitution’s prerogatives.”

12:34 Jay Goodman Tamboli: Leahy noting that Kagan’s confirmation would mark the first time we have 3 women on the Supreme Court.

12:37 Jay Goodman Tamboli: In his statement, Leahy praises outlawing of child labor, minimum wage laws, Social Security, Medicare and Medicaid as progress, continuing today.

12:38 Jay Goodman Tamboli: Leahy says those reforms came after a “rejection 75 years ago of conservative judicial activism by the Supreme Court.”

12:39 Jay Goodman Tamboli: Leahy’s opening statement can be read at http://drop.io/2ig5lon/asset/leahy-opening-statement-at-kagan-hearing

12:39 Jay Goodman Tamboli: Leahy says he will question Kagan about her judicial philosophy, but he “reject[s] the ideological litmus test that some would apple.”

12:40 Jay Goodman Tamboli: Some say the first day is the hardest day of confirmation hearings—the nominee has to sit and listen, with a poker face the whole time.

12:41 Jay Goodman Tamboli: Leahy mentions Bush v. Gore and Citizens United as evidence of judges being partisan.

12:42 Jay Goodman Tamboli: Leahy says he hopes Kagan shows she is an “independent Justice.” Closes with “Equal Justice Under Law.”

12:43 Jay Goodman Tamboli: Sessions is up, also reminiscing about Senator Byrd.

12:44 Jay Goodman Tamboli: Sessions says Republicans will conduct hearing in “thoughtful and respectful manner,” but “it is not a confirmation.” “There are serious concerns about this nomination.”

12:44 Jay Goodman Tamboli: Sessions notes Kagan’s inexperience as a judge and lawyer.

12:45 Jay Goodman Tamboli: “There is no substitute, I think, for being in the harness of the law.”

12:45 Jay Goodman Tamboli: Kagan’s these on socialism “seems to bemoan socialism’s demise there.’

12:46 Jay Goodman Tamboli: Sessions notes Kagan worked for the Senate Judiciary Committee, helping confirm Justice Ginsburg, “now one of the most activist justices on the Supreme Court.”

12:47 Jay Goodman Tamboli: Sessions talking about Kagan’s role in gun control and abortion policy in Clinton WH.

12:47 Jay Goodman Tamboli: Sessions now talking about military recruiting at Harvard while Kagan was there.

12:49 Jay Goodman Tamboli: Kagan doesn’t look happy as Sessions talks about Kagan’s arguments in the Citizens United case, where he says she argued that “the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election.”

12:50 Jay Goodman Tamboli: Sessions says “Kagan has associate herself with well-known activist judges.”

12:51 Jay Goodman Tamboli: “In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power.”

12:51 Jay Goodman Tamboli: Somehow I don’t think Sessions is referring to the Bush Administration…

12:52 Jay Goodman Tamboli: Sessions brings up Obama’s “empathy” standard.

12:53 Jay Goodman Tamboli: Senator Kohl (D-Wisc.) is up.

12:54 Jay Goodman Tamboli: Sessions’s opening statement: http://drop.io/2ig5lon/asset/opening-statement-of-sen-sessions-for-the-nomination-hearing-of-elena-kagan

12:56 Jay Goodman Tamboli: Kohl notes that “deciding Supreme Court cases is not merely a mechanical application of the law.”

12:57 Jay Goodman Tamboli: Kohl says “we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court.”

1:00 Jay Goodman Tamboli: Senator Hatch’s (R-UT) turn.

1:00 Jay Goodman Tamboli: Hatch notes the passing of Senator Byrd and Martin Ginsburg.

1:01 Jay Goodman Tamboli: Hatch welcomes Kagan back. “Something tells me this is likely to be your last confirmation hearing,” he jokes.

1:02 Jay Goodman Tamboli: Hatch acknowledges that about a third of Supreme Court Justices have not had judicial experience, but most of them have had experience as attorneys.

1:05 Jay Goodman Tamboli: Hatch also brings up Kagan’s statements on the purpose of hearings and what nominees should be willing to say.

1:06 Jay Goodman Tamboli: Hatch notes she made those comments in a law review article, not as “a student writing a blog.”

1:08 Jay Goodman Tamboli: Feinstein is up. Also comments on the passing of Senator Byrd. “He was tough, he was strong, he card.”

1:09 Jay Goodman Tamboli: Feinstein says there has been a “drift net” searching for a “disqualifying factor” for Kagan, but no such factor has been found.

1:11 Jay Goodman Tamboli: On Kagan’s lack of judicial experience, Feinstein says “Frankly, I find this refreshing.” Notes current court is the only one in history to be composed entirely of former federal Court of Appeals judges.

1:12 Jay Goodman Tamboli: Feinstein says recently there has been a “radical change” in the Supreme Court, noting this morning’s ruling striking down gun laws across the country.

1:14 Jay Goodman Tamboli: Saying that today’s decision and DC v. Heller overruled decades of precedent, Feinstein says she is glad that the Kagan documents show she appreciates stare decisis.

1:15 Jay Goodman Tamboli: If hearing is a “snoozefest,” Feinstein says, it’s because Kagan “is unquestionably qualified”

1:16 Jay Goodman Tamboli: Grassley (R-Iowa)

1:19 Jay Goodman Tamboli: Surprising no one, Grassley says “It’s our duty to confirm a nominee who won’t come with a results-oriented philosophy or an agenda to impose his or her personal politics, feelings or preferences from the bench. It’s our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.

1:20 Jay Goodman Tamboli: Grassley notes Kagan’s political involvement.

1:20 Jay Goodman Tamboli: Grassley says Kagan “forcefully promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.”

1:24 Jay Goodman Tamboli: Feingold (D-Minn)

1:27 Jay Goodman Tamboli: Feingold (D-Minn) says he hopes for more representation on the court for people from western and midwestern states, bringing a laugh from Kagan.

1:31 Jay Goodman Tamboli: Kyl (R-Ariz.) is up. He was one of the harsher questioners of Sonia Sotomayor last year.

1:33 Jay Goodman Tamboli: Committee Republican staff just handed out a thick packet of documents on Kagan’s background, experience, record on military recruitment and guns.

1:34 Jay Goodman Tamboli: Kyl says he’s surprised the ABA rated Kagan well, since she hasn’t practiced law.

1:36 Jay Goodman Tamboli: Kyl says former Supreme Court Justice Thurgood Marshall “might be the epitome of a results-oriented judge.” Kagan clerked for Marshall.

1:37 Jay Goodman Tamboli: Kyl says Kagan’s record while working for Marshall shows she agreed with him.

1:38 Jay Goodman Tamboli: Kyl says he’s “concerned” by Kagan referring to one party in a case as “the good guys” in a memo to Marshall.

1:38 Victoria Jones: There’s so much you can do in your statements when you have over 150,000 pages of documents to choose from.

1:40 Jay Goodman Tamboli: Kyl says he is “deeply troubled” by Kagan’s decision to urge the Supreme Court to review Arizona law that would revoke business licenses of companies that hire illegal immigrants. The Supreme Court announced this morning that they will hear that challenge this fall.

1:40 Victoria Jones: Kyl suggesting possible political motivation in the Arizona case on Kagan’s part.

1:41 Jay Goodman Tamboli: Specter (D-Penn) is up.

1:59 Jay Goodman Tamboli: Sorry, I had to step away for a few minutes to do a radio show. Senator Schumer (D-NY) is up now.

1:59 Jay Goodman Tamboli: Schumer jokes that with the volume of documents Kagan has produced, he would think they’d be able to finish the hearings with a single round of questions.

2:01 Jay Goodman Tamboli: Schumer says that if committee members can’t evaluate Kagan on this record, there is no record or nominee that could satisfy them.

2:03 Jay Goodman Tamboli: Schumer says Citizens United is a step back toward Lochner—conservative judicial activism.

2:03 Jay Goodman Tamboli: “It doesn’t end with citizens United. There’s case after case after case.”

2:04 Jay Goodman Tamboli: Schumer saying Kagan has “moderation and pragmatism.”

2:05 Jay Goodman Tamboli: Schumer notes Kagan’s work at Harvard, where she got ideologically-separate faculty members to work together.

2:06 Jay Goodman Tamboli: Schumer keeps saying “moderation and pragmatism.” “Pragmatism and moderation.”

2:07 Jay Goodman Tamboli: Schumer: “She is straight out of central casting for this job.”

2:07 Jay Goodman Tamboli: Cornyn (R-Texas)

2:08 Jay Goodman Tamboli: Cornyn says he’s going to talk about two visions of judges. The “traditional” version and the “activist” version.

2:14 Jay Goodman Tamboli: Cornyn says Justice Marshall considered himself a judicial activist, again quoting Marshall as saying “You do what you think is right and let the law catch up.”

2:15 Jay Goodman Tamboli: Cornyn cites Sotomayor as saying she wouldn’t use personal views in ruling, but he says she has voted with the liberal bloc on the court after joining.

2:16 Jay Goodman Tamboli: Senator Durbin (D-Ill.)

2:18 Jay Goodman Tamboli: Durbin mockingly refers to Republican’s derision of “activism.” He argues that the Citizens United ruling is an example of activism.

2:20 Jay Goodman Tamboli: Durbin says that “America is a better nation because of the tenacity, integrity, and values of Thurgood Marshall.”

2:20 Jay Goodman Tamboli: “Thank god,” he says.

2:21 Jay Goodman Tamboli: On Thurgood Marshall’s argument in Brown v. Board, Durbin says, “If that is an activist mind at work, we should be grateful.”

2:24 Jay Goodman Tamboli: Durbin closes by praising Justice Stevens, whom Kagan would be replacing and who is from Illinois.

2:24 Jay Goodman Tamboli: Coburn (R-OK)

2:24 Jay Goodman Tamboli: Coburn will undoubtedly bring up abortion.

2:26 Jay Goodman Tamboli: “We know elections have consequences,” Coburn says. “But there is a group in America who believes in strict construction.”

2:26 Jay Goodman Tamboli: Coburn says he’s going to want to know a lot about specific issues.

2:28 Jay Goodman Tamboli: Saying prior nominees said things in hearings that didn’t bear out, Coburn asks, “Why should we have this dance if we’re not going to find out real answers?”

2:29 Jay Goodman Tamboli: Coburn talks about Kagan restoring faith in the judiciary. I have to wonder, though, which is higher: trust in the Supreme Court or trust in Congress?

2:29 Jay Goodman Tamboli: Leahy announces we’ll have a break after Senator Cardin’s statement.

2:29 Jay Goodman Tamboli: Cardin (D-MD) up

2:31 Jay Goodman Tamboli: Cardin says Americans should pay close attention to the Supreme Court and to confirmation hearings because rule of law “is supposed to protect us from abuses of power.”

2:35 Jay Goodman Tamboli: Cardin goes over some recent decisions he didn’t like, says he also doesn’t like increasing number of 5–4 decisions in recent years.

2:38 Jay Goodman Tamboli: SCOTUSblog’s stat pack (http://www.scotusblog.com/2010/06/latest-stat-pack-6-26-10/) says the number of 5–4 decisions has actually been going down.

2:39 Jay Goodman Tamboli: 10-minute recess

2:50 Jay Goodman Tamboli: “10 minutes” really means “at least 10 minutes” in Congress-speak. Still waiting for the committee to return.

2:54 Jay Goodman Tamboli: Kagan is back, room is going quiet.

2:54 Jay Goodman Tamboli: Leahy thanks the senators for remaining within their time limits. We’re slightly ahead of schedule, he says.

2:55 Jay Goodman Tamboli: Senator Whitehouse (D-RI) is up, jokingly asks if the remaining senators therefore get extra time.

3:01 Jay Goodman Tamboli: Whitehouse talking about the power of the jury.

3:03 Jay Goodman Tamboli: Whitehouse talking about the Exxon decision limiting the damage award from the Exxon Valdez oil spill. The Supreme Court limited the award a jury had chosen.

3:13 Jay Goodman Tamboli: Klobuchar says she’d like someone to bring “real-world experience” to Supreme Court deliberations.

3:16 Jay Goodman Tamboli: Kaufman (D-Del.) is talking about the need for diversity on the Court—the fact that all the current justices have been federal judges before going to the Supreme Court.

3:20 Jay Goodman Tamboli: Kaufman also piling on Citizens United decision.

3:23 Jay Goodman Tamboli: Leahy clarifies that Senator Franken will give his opening statement, then Senators Kerry and Brown will introduce Kagan, and then Kagan will have her opening statement.

3:26 Jay Goodman Tamboli: Franken (D-Minn.) is up, criticizing the “activism of the Roberts court.”

3:26 Jay Goodman Tamboli: Franken says Republicans often cite Justice Clarence Thomas as a model of a non-activist judge, even though Thomas has voted to strike down more federal laws than Justices Stevens and Breyer combined.

3:29 Jay Goodman Tamboli: Franken cites several recent decisions where the Court ruled in favor of big business and where Justice Stevens led the dissent.

3:31 Jay Goodman Tamboli: Franken calls Citizens United “wrong and shocking.”

3:31 Jay Goodman Tamboli: Franken is talking about car companies refusing to put in seatbelts until Congress mandated it.

3:32 :

3:33 Jay Goodman Tamboli: Franken asks (rhetorically) whether those laws, and laws limiting air pollution, would have stood up if big corporations had been able to spend unlimited money in elections.

3:33 Victoria Jones: Sen Al Franken is always very plain spoken.

3:34 Jay Goodman Tamboli: Kagan and Senator Kerry are embracing as the committee staff rearranges the tables for their introduction of her.

3:34 Victoria Jones: Interesting that Senator Scott Brown will introduce her when he is by no means a certain vote for her.

3:35 Victoria Jones: Weather outside the hearing room has been crazy in the past hour.

3:37 Jay Goodman Tamboli: “Massachusetts is proud of Elena Kagan’s accomplishments,” Kerry says.

3:40 Jay Goodman Tamboli: Kerry talking about Kagan’s help building consensus for legislation.

3:41 Jay Goodman Tamboli: Also her work building consensus at Harvard Law.

3:45 Jay Goodman Tamboli: Scott Brown (R-Mass.) is about to be up. As Victoria said, he’s not a clear vote in favor of Kagan, so it’ll be interesting to hear what he says.

3:46 Victoria Jones: Scott Brown also in the news today as likely to vote against Wall Street reform.

3:46 Victoria Jones: Significant because with Sen Robert Byrd’s passing, there may not be enough Democratic votes in the Senate to pass it now.

3:49 Jay Goodman Tamboli: Brown not saying much so far. Proud that the first female Solicitor General came from Massachusetts. Reading a summary of a case Kagan just won (and it sounds like he doesn’t understand it).

3:50 Jay Goodman Tamboli: Brown says he, like everyone here, has questions for Kagan, and he looks forward to her answers. No real criticism in his statement, but no real praise, either.

3:50 Victoria Jones: Very neutral statement from Brown.

3:51 Jay Goodman Tamboli: Kerry walks along the dais to chat with Republican committee members, Brown walks out the back door.

3:51 Jay Goodman Tamboli: Kagan is sworn in.

3:51 :

3:52 Jay Goodman Tamboli: Kagan thanks everyone, says the senators with whom she had courtesy visits were polite and friendly.

3:53 Victoria Jones: Kagan is wearing a black shell, bright blue jacket with a wide collar, large black buttons, and pearls.

3:54 Jay Goodman Tamboli: Kagan thanks her parents for giving her good values.

3:54 Victoria Jones: Yes, I would describe the tie, shirt and jacket if she was a man.

3:55 Jay Goodman Tamboli: Sonia Sotomayor also wore blue on her first day. http://www.flickr.com/photos/talkradionews/3717647168/

3:55 Victoria Jones: What did she wear on day two?

3:56 Jay Goodman Tamboli: Day two Sotomayor wore red: http://www.flickr.com/photos/talkradionews/3721190283/

Day three, black: http://www.flickr.com/photos/talkradionews/3724855458/

3:57 Jay Goodman Tamboli: Kagan praises the value of the “rule of law”—the magic words every nominee must say.

3:57 Victoria Jones: It was a very personal opening to her statement. Her family, her country, and the women on the court.

4:00 Victoria Jones: Supreme Court is a wondrous institution, must also be a modest one, Kagan says.

4:01 Jay Goodman Tamboli: Kagan praises the Supreme Court, noting it “has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”

4:01 Victoria Jones: That’s a fascinating statement - she will be asked about it.

4:02 Jay Goodman Tamboli: Kagan says she learned the value of a habit from Justice Stevens: “understanding before disagreeing.”

4:04 Jay Goodman Tamboli: Kagan closes, noting blessings of the country “are rooted in this country’s Constitution and its historic commitment to the rule of law.”

4:04 Jay Goodman Tamboli: “And if I have the honor to be confirmed, I will do all I can to help preserve it for future generations.”

4:05 Jay Goodman Tamboli: And with that, we’re in recess until tomorrow.

4:05 Victoria Jones: She will be challenged on her commitment to the rule of law - that she allowed politics in the Clinton White House to supersede.

4:05 Jay Goodman Tamboli: Not just in White House, but also working for Marshall.

4:05 Victoria Jones: Right.

4:05 Jay Goodman Tamboli: Democratic senators are now all walking down to speak with Kagan and pose for pictures.

4:06 Jay Goodman Tamboli: Kagan’s walking around the seating area, giving hugs to friends. Very friendly and not at all nervous.

4:11 Jay Goodman Tamboli: That’s it for today. I’ll be liveblogging the hearing tomorrow starting at 9:00 at http://www.talkradionews.com/.

4:12 Jay Goodman Tamboli: Tomorrow the senators get to start asking questions, so that’s when it’ll get really interesting.