Elena Kagan Confirmation Hearings Liveblog, Day 3

8:54 Jay Goodman Tamboli: Gearing up for the third day here in the committee room.

8:55 Jay Goodman Tamboli: This morning we’ll finish the first round of questions. Senators Whitehouse, Klobuchar, Kaufman, and Franken will get to ask questions, so that should take about 2 hours. Then the committee will go into closed session to discuss Kagan’s FBI file. Then we’ll return for the second round of questions, where each senator will have 20 minutes.

8:59 Jay Goodman Tamboli: Kagan is here.

9:00 Jay Goodman Tamboli: Senator Leahy, an amateur photographer, is also taking photos of Kagan, and some of the professional photographers are taking pictures of him.

9:03 Jay Goodman Tamboli: Senator Whitehouse (D-RI) is up.

9:04 Jay Goodman Tamboli: Whitehouse is describing his opinion of the role of a judge, ruling on the basis of law and the case before them, giving fair treatment to all, limiting themselves to precedent. Asks Kagan if she agrees.

9:04 Jay Goodman Tamboli: Kagan says she does.

9:06 Jay Goodman Tamboli: Whitehouse asks where the doctrine of precent comes from. Kagan says it ensures cases are judged on the law, and it’s also a form of restraint/humility.

9:07 Jay Goodman Tamboli: Whitehouse notes that there are no appeals from the Supreme Court. “Who watches the watchmen?,” he says is a pertinent question.

9:07 Jay Goodman Tamboli: Whitehouse really just discussing the importance of precedent with Kagan. These aren’t even questions.

9:09 Jay Goodman Tamboli: Whitehouse notes that Brown v. Board was unanimous; Roe v. Wade was 7–2. Both cases had majorities with Justices appointed by both Republicans and Democrats.

9:09 Jay Goodman Tamboli: Whitehouse contrasts that with recent decisions.

9:12 Jay Goodman Tamboli: Whitehouse asks if the majorities should try to write broader opinions to get more, bipartisan votes.

9:12 Jay Goodman Tamboli: Kagan says it’s important for each judge to do what he or she believes. She cautions against logrolling.

9:13 Jay Goodman Tamboli: Whitehouse asks if it’s possible to get larger majorities without logrolling and other techniques. Kagan responds talking about the values of narrow decisions and how they can get broader support.

9:15 Victoria Jones: Kagan is wearing a turquoise shell and deep blue - what used to be called petrol many years ago - jacket, velvet, I think.

9:15 Victoria Jones: Kagan appears to be wearing the same pearl necklace and earrings she wore on Monday.

9:15 Jay Goodman Tamboli: Whitehouse asks if narrower decisions also force the Justices to constrain themselves and not move the law as much. Kagan says she thinks Justices should rule on the case before them, no broader than necessary.

9:16 Victoria Jones: Wild speculation - a family piece?

9:16 Jay Goodman Tamboli: Victoria: or maybe just a good luck piece.

9:16 Jay Goodman Tamboli: Whitehouse is pushing Kagan to say the Court should be more restrained, but Kagan is refusing to tell other Justices how to rule.

9:16 Victoria Jones: Could be, as we’re in the realm of not knowing what we’re talking about.

9:17 Victoria Jones: Kagan will have to work with them if confirmed, after all.

9:17 Jay Goodman Tamboli: Whitehouse is speculating that the 5–4 vote counts are indications of a broader-than-necessary ruling. As SCOTUSBlog has noted in its statistics, the number of 5–4 decisions has actually decreased pretty dramatically under Chief Justice Roberts.

9:18 Victoria Jones: And yet Monday’s decisions were mostly 5-4.

9:18 Jay Goodman Tamboli: Whitehouse moving on to the institutional role of the Supreme Court with respect to findings of fact, noting that the opinion in Citizens United gave some flat statements of fact.

9:19 Jay Goodman Tamboli: Like Hatch, Whitehouse is using this hearing to make statements about something he knows Kagan can’t do anything about. It puts Kagan in a really awkward position.

9:20 Jay Goodman Tamboli: There’s a cognitive bias, though: We notice controversial 5–4 decisions. We don’t notice as much when big cases are resolved unanimously.

9:20 Victoria Jones: Whitehouse was expected to raise some political concerns of his during the hearing.

9:21 Victoria Jones: There was also speculation that Whitehouse might come at Kagan from the left.

9:21 Jay Goodman Tamboli: Whitehouse is asking Kagan to restrain herself from making findings of fact at the Supreme Court level, especially when those facts diverge from the ones found by Congress.

9:22 Jay Goodman Tamboli: Generally, the Supreme Court defers to lower courts on issues of fact in a specific case and to Congress on the facts justifying a law.

9:22 Jay Goodman Tamboli: Kagan: “Courts of law have neither the competence nor the legitimacy to conduct fact finding in the way Congress does.”

9:25 Jay Goodman Tamboli: Whitehouse moving on to precedent, using Roberts’s definition from an opinion.

9:27 Jay Goodman Tamboli: NPR’s Nina Totenberg is rearranging chairs in our row of press seats. Clearly she’s about as interested in this dialogue as I am.

9:28 Jay Goodman Tamboli: The press section is only about as crowded now as it was at closing yesterday—about 50% full.

9:31 Jay Goodman Tamboli: Whitehouse talking about juries.

9:31 Victoria Jones: What’s she rearranging the seats for?

9:32 Jay Goodman Tamboli: Victoria: We’re packed in pretty tightly, and with half the seats empty it made sense to get rid of one chair to give everyone more room.

9:33 Victoria Jones: Whitehouse was also wearing the deep grey suit and maroon tie that Feingold wore yesterday - maybe the same one.

9:34 Jay Goodman Tamboli: Senator Klobuchar (D-Minn.) is up. Jokes that Kagan’s long day yesterday probably meant she probably missed the premiere of the new Twilight movie.

9:34 Victoria Jones: Gotta wonder how many senators got that reference.

9:34 Jay Goodman Tamboli: Klobuchar going back to Roberts’s comparison of judges to umpires. Asks Kagan what she thinks.

9:35 Jay Goodman Tamboli: Kagan says it’s a decent metaphor, but has flaws. Like an umpire, a judge doesn’t have a team in the game. Kagan named a team (sorry, I missed which one) and asked Klobuchar if that was her team. It wasn’t.

9:36 Victoria Jones: Phillies. Her team’s the Twins.

9:37 Victoria Jones: Kagan has a disarming way about her that - from watching on TV - seems to appeal to the senators - shouldn’t think it will impact their votes.

9:38 Victoria Jones: Text, strucure, history, precedent - that’s what Kagan says should be looked at it determining a case.

9:38 Victoria Jones: sorry, structure.

9:39 Jay Goodman Tamboli: Kagan jokes a lot more than Sotomayor did and seems much more comfortable. I think it works well. It’s going to be hard to get the public up in arms about her.

9:40 Jay Goodman Tamboli: Klobuchar asks what Kagan will bring to bench from her experience at Harvard Law and what lessons she learned. Sounds like a job interview question.

9:40 Jay Goodman Tamboli: Kagan again says listening is the top skill she’ll bring, and she thinks that’s really important.

9:40 Victoria Jones: Klobuchar is wearing a cream jacket, what in another season would be called winter white.

9:41 Victoria Jones: I think Kagan’s going to be a talker as much as a listener if she gets on the court.

9:42 Jay Goodman Tamboli: Klobuchar asking Kagan for oral argument tips.

9:43 Jay Goodman Tamboli: Kagan says making arguments has deepened her appreciation for the Court. She says all the Justices are so engaged, prepared.

9:43 Jay Goodman Tamboli: My experience agrees. I think most people would be shocked at how prepared, engaged, smart, and INTENSE the Justices are.

9:43 Victoria Jones: Fascinating.

9:44 Victoria Jones: Another reason we should have TV cameras.

9:45 Victoria Jones: Klobuchar is definitely conducting a job interview. And why not?

9:46 Jay Goodman Tamboli: Kagan disowns her undergraduate thesis, where she said Justices wield great power for social or economic change. She says she wrote that before going to law school, and now she sees things differently.

9:46 Victoria Jones: I disown everything I wrote when I was 18.

9:47 Jay Goodman Tamboli: Even when there are social problems, Kagan says, “it’s just not up to courts to fix them.”

9:47 Victoria Jones: And 21.

9:47 Jay Goodman Tamboli: Klobuchar brings up the RAV v. St. Paul, a case which ruled that cross-burning has some expressive content protected by the First Amendment.

9:48 Jay Goodman Tamboli: Kagan says she generally disagrees with Justice Stevens in that case, but she does agree that the case demonstrates the disconnect between Justices and the facts on the ground.

9:49 Jay Goodman Tamboli: In that case, the law in question only barred cross burning with intent to intimidate. Justice Scalia, writing for the majority, said that it was unconstitutional to ban an activity because of its expressive content. In other words, a flat ban on cross burning might be OK, not a ban on only some cross burning. Another cross burning ban was upheld in Virginia v. Black a few years ago.

9:51 Jay Goodman Tamboli: Kagan is facing Klobuchar, meaning she’s leaning away from the microphone. Getting very quiet in here.

9:53 Jay Goodman Tamboli: Klobuchar asks about the Melendez-Diaz case, where the Court ruled that lab test results can’t simply be submitted as evidence in a trial. Instead the lab technicians must testify to the results. Based on the confrontation clause of the Constitution.

9:53 Jay Goodman Tamboli: Klobuchar says this is another example of the Court being out of touch with practicality, since this ruling has put a huge burden on lab technicians. Asks Kagan to comment.

9:54 Jay Goodman Tamboli: Kagan says the federal government did file a brief in a recent case and talked about the burden on lab analysts.

9:55 Jay Goodman Tamboli: Kagan explains that the Court’s ruling was that the lab results are “testimonial” evidence, meaning the Sixth Amendment’s Confrontation Clause guarantees a defendant has the right to cross examine the lab analyst.

9:56 Jay Goodman Tamboli: Kagan says the Justice Scalia has been most responsible for this interpretation of the Confrontation Clause. She notes that this ruling has been really liked by criminal defendants, and Justice Scalia is not really a friend of criminal defendants.

9:57 Jay Goodman Tamboli: She says these rulings are a good example of Justices ruling in a way that is not outcome-oriented.

9:58 Jay Goodman Tamboli: It’s funny how many people on Twitter are suggesting the senators should bring vuvuzelas to the hearing to liven things up.

9:59 Jay Goodman Tamboli: Klobuchar is asking Kagan about an article Kagan wrote about the New York Times v. Sullivan case, where the Court held newspapers can’t be held liable for false statements about public figures unless there is actual malice.

9:59 Jay Goodman Tamboli: Kagan had said the downside of that is that it allows a lot of bad stuff to be out there.

10:00 : arent these hearings suppose to be boring, its not reality tv. If boring means serious, and not clownish, then i am all for boring.

10:00 Jay Goodman Tamboli: I’m with you, Greg. I’d like a little less posturing, actually.

10:01 Jay Goodman Tamboli: Kagan says the real question is how far the doctrine should go. She notes reputational harm is real harm, and people are injured.

10:01 Jay Goodman Tamboli: Reading what some of the people are saying about Kagan on Twitter and blogs, I can understand. There’s some pretty nasty stuff out there.

10:02 Victoria Jones: Greg, Kagan’s pretty good value, actually, dry and humorous.

10:03 Victoria Jones: The senators always use these hearings for their own ends.

10:03 Jay Goodman Tamboli: Senator Kaufman (D-Del.) is up.

10:04 Jay Goodman Tamboli: He asks Kagan about her role in the Clinton White House. She says she was there helping them carry out Clinton’s policy objectives.

10:05 Jay Goodman Tamboli: Kagan says it’s different as a judge: a judge is an independent actor.

10:05 Victoria Jones: Kagan says when she was a policy aide she was not primarily looking at things as a lawyer, when in the Clinton White House.

10:06 Victoria Jones: Kagan says “I would be independent and not favor any political party” if fortunate enough to be confirmed.

10:08 Jay Goodman Tamboli: Kagan talking about Justice Jackson. He had worked closely with FDR, but Jackson couldn’t be counted on to vote in favor of administration policies. Kagan says that’s the kind of independence she’d show.

10:09 Victoria Jones: Kaufman is wearing a black jacket - always striking - white shirt, and diagonally red and white striped tie. Quite jaunty.

10:11 Victoria Jones: I think many lay people have a problem with stare decisis.

10:11 Jay Goodman Tamboli: Kaufman talking about precedent and outcome-oriented decisions. Clearly talking about the Citizens United decision. He asks Kagan what factors she uses when deciding whether to overrule precedent.

10:11 Victoria Jones: Why, just because it happened that way once before, should it happen that way again? They say.

10:11 Jay Goodman Tamboli: Kagan says unworkability is a big factor, differing results.

10:12 Jay Goodman Tamboli: It’s an interesting question. Justice Thomas certainly doesn’t believe in precedent.

10:13 Victoria Jones: Because Citizens United overturned a century of precedent, this is significant.

10:14 Victoria Jones: Kaufman asks about the length of precedent - Citizens United was a century - a veiled reference?

10:14 Jay Goodman Tamboli: Kaufman asks if the age of precedent is relevant. Kagan says maybe, but more important is when the Court has reconsidered and reaffirmed precedent.

10:14 Jay Goodman Tamboli: My apologies, Kaufman earlier was talking about Leegin Creative Leather Products, Inc. v. PSKS, Inc. http://en.wikipedia.org/wiki/Leegin_Creative_Leather_Products,_Inc._v._PSKS,_Inc.. Now getting to Citizens United.

10:15 Jay Goodman Tamboli: Kaufman asks who asked the parties to come back for a second argument. Asks whether it’s unusual.

10:15 Jay Goodman Tamboli: Kagan says the court asked. She says it’s unusual, but it happens.

10:16 Jay Goodman Tamboli: Kagan says Justices should avoid constitutional questions, but sometimes they can’t be avoided.

10:17 Jay Goodman Tamboli: Several people in the public gallery falling asleep. I guess they’re not fans of corporate law.

10:17 Jay Goodman Tamboli: Kaufman is from Delaware, so corporate law is his thing. If anyone’s going to ask about corporate personhood on the Dem side, it’ll be him.

10:18 Jay Goodman Tamboli: Kaufman says he’s not going to ask Kagan to say whether she thinks Citizens United was results-oriented judging, but he asks her to comment on results-oriented judging. Unsurprisingly, she says it’s bad.

10:20 Jay Goodman Tamboli: Kaufman points out that the small businesses Senator Hatch was complaining about yesterday could, in contrast to what Hatch was saying, declare a dividend and then use corporate money for campaign expenditures. In other words, small corporations weren’t restricted from spending even before the Citizens United decision.

10:20 Jay Goodman Tamboli: Kagan says this came up at oral argument, and agrees.

10:21 Jay Goodman Tamboli: Many nodding heads in the public gallery. If the police would allow us to bring coffee in, there probably wouldn’t be this problem.

10:22 Victoria Jones: Sorry, I fell asleep. I’m not a fan of corporate law. But those corporations that are now persons could join in on the live blog by typing…

10:22 Jay Goodman Tamboli: Kaufman says many people he speaks with talk about the corruption and the appearance of corruption as soon as he mentions he’s a Senator, so it’s remarkable that the Court dismissed that concern in the Citizens United decision.

10:23 Victoria Jones: I’ve managed to bring coffee in. They must be strict today.

10:23 Jay Goodman Tamboli: Kaufman now asking about the elimination of punitive damages in the Exxon case.

10:23 Jay Goodman Tamboli: Not really a question…

10:24 Jay Goodman Tamboli: Kaufman asks about limits on regulation of financial markets. Kagan says the Commerce Clause allows pretty broad regulation of economic matters.

10:27 Jay Goodman Tamboli: Kagan again talking about pro bono encouragement at Harvard Law.

10:33 Jay Goodman Tamboli: Leahy says Senator Franken will get to ask questions, then we’ll take a break. Then we come back, then a lunch break. Unclear when the committee will go to closed session.

10:33 Jay Goodman Tamboli: Franken is up. He had some great questions last year for Sotomayor.

10:33 Jay Goodman Tamboli: Franken talking about fairness.

10:33 Jay Goodman Tamboli: Mandatory arbitration.

10:33 Victoria Jones: Franken always straightforward.

10:34 Jay Goodman Tamboli: Frankens says that many Americans have signed contracts with mandatory arbitration clauses, and in many cases the arbitrators are hired by the companies who wrote the contract.

10:34 Victoria Jones: I think he’s possibly going after KBR and the women who say they were raped.

10:35 Victoria Jones: No, I think I’m wrong.

10:35 Victoria Jones: However, it’s a case he’s been really strong on.

10:35 Jay Goodman Tamboli: Franken mentions recent decisions that have made it harder to get out of arbitration clauses. He points to a 2001 decision allowing employment contract claims to be forced to arbitration, even though a federal law seems to exempt employment claims.

10:36 Jay Goodman Tamboli: He’s been talking about the KBR case a lot, and it’s relevant to this, but this is also a big issue in its own right.

10:37 Jay Goodman Tamboli: Franken quotes Justice Kennedy’s opinion from that case, where Kennedy wrote that the Court didn’t need to consider the legislative history. Kennedy said the exclusion only applied to transportation workers.

10:38 Jay Goodman Tamboli: Franken says he didn’t like that opinion, and he was therefore happy to hear Kagan yesterday tell Senator Schumer that she thought it was appropriate to look at the history of a statute when deciding cases. He asks Kagan how much weight Congressional deliberations should get.

10:38 Jay Goodman Tamboli: Kagan says the only thing that matters when deciding statutory cases is Congress’s intent, and the Court should look at what Congress meant.

10:38 Jay Goodman Tamboli: Sometimes, Kagan says, that can be difficult, such as when new situations arise that Congress had not considered.

10:38 Victoria Jones: So Kagan directly disagrees with Kennedy.

10:39 Jay Goodman Tamboli: Franken asks Kagan if she agrees with Kennedy.

10:39 Jay Goodman Tamboli: Kagan says that when the text is clear, the Court shouldn’t go further, but when the text is ambiguous the Court should look at the intent.

10:40 Jay Goodman Tamboli: Franken asks Kagan how Congress can make the text clear.

10:40 Jay Goodman Tamboli: Kagan says Congress should speak as precisely and comprehensively as is possible.

10:42 Jay Goodman Tamboli: Franken moves on to last week’s Rent-A-Center case, where the Court ruled that it was OK for contracts to mandate arbitration even for challenges to the validity of the arbitration clauses.

10:42 Jay Goodman Tamboli: The case was brought, Franken said, by a black man who claimed he was passed over for promotions because of his race.

10:43 Jay Goodman Tamboli: Franken admits he knows Kagan won’t answer whether she agrees with that decision, but he asks her if she thinks it’s important for everyone to get a fair day in court.

10:45 Jay Goodman Tamboli: Kagan says she doesn’t know the case well, but she guesses that Kennedy may have thought the text was unambiguous. Franken says she guessed wrong. Kagan jokes that it wouldn’t be the first time.

10:46 Victoria Jones: Franken says 80% of Americans who hear about Citizens United think it’s a bad idea.

10:50 Jay Goodman Tamboli: Franken asks Kagan about the effects of Citizens United and the way it was decided, noting the Supreme Court asked for new arguments after the first oral argument session. Franken says the Supreme Court shouldn’t answer questions it wasn’t asked.

10:53 Jay Goodman Tamboli: Franken, clearly angry, says that if Citizens United isn’t outcome-oriented he doesn’t know what is.

10:54 Jay Goodman Tamboli: He says he can’t ask Kagan about the ruling, so he asks about specifics.

10:54 Jay Goodman Tamboli: Franken asks if Kagan agrees with Justice Scalia that the Court isn’t a self-starting institution. She says she agrees.

10:54 Jay Goodman Tamboli: He asks if she agrees with Roberts statement about making deciding only as much as is needed. She agrees.

10:56 Jay Goodman Tamboli: Franken says that he thinks that Justices Scalia and Roberts did not adhere to their own principles and “were legislating from the bench.”

10:56 Victoria Jones: Wow.

10:56 Jay Goodman Tamboli: Franken says he wants to ask about the Rapanos case. http://en.wikipedia.org/wiki/Rapanos_v._United_States

10:57 Jay Goodman Tamboli: In that case, Franken says, the Court struck down regulations protecting waterways.

10:57 Jay Goodman Tamboli: Franken says that thanks to this case and Swank, the Clean Water Act does not cover half of the nation’s largest polluters.

10:58 Jay Goodman Tamboli: Franken refers back to Kagan statement yesterday about deferring to administrative agencies.

10:58 Jay Goodman Tamboli: Franken asks Kagan how many Justices have degrees in environmental science and public health. Both guess none.

10:59 Jay Goodman Tamboli: Snarky reporter sitting near me asks how many senators have degrees in those areas. Ha!

11:00 Jay Goodman Tamboli: Kagan says deference to administrative agencies is important because they have expertise and are accountable to the public through elections.

11:01 Jay Goodman Tamboli: Kagan says she hasn’t read the case and can’t say whether proper deference was given.

11:01 Jay Goodman Tamboli: Franken asks, what if she assumes his description is correct.

11:02 Jay Goodman Tamboli: Kagan dodges the question but says her writings show she supports Chevron deference.

11:02 Jay Goodman Tamboli: We’re taking a “very brief” break.

11:13 Jay Goodman Tamboli: At stakeout, Coburn says he thinks Kagan yesterday said that she thinks the Supreme Court will allow Congress to do anything “to us” that it wants.

11:13 Jay Goodman Tamboli: A very odd comment, coming from a sitting Senator. Who is “us”?

11:14 Jay Goodman Tamboli: Kyl calls Democratic complaints about a partisan divide on the Court “silly.”

11:22 Jay Goodman Tamboli: We’re beginning the second round, where senators will have up to 20 minutes.

11:23 Jay Goodman Tamboli: Going straight to Senator Sessions.

11:24 Jay Goodman Tamboli: R-Ala

11:24 Jay Goodman Tamboli: Sessions says he was disappointed a bit by how she described the situation at Harvard with military recruiting. Says the White House has been spinning that story inaccurately, and her testimony has been “too consistent” with that inaccurate spin.

11:24 Jay Goodman Tamboli: He’s not quite calling her a liar…

11:26 Jay Goodman Tamboli: Sessions notes that at Kagan’s SG confirmation hearing, she said she’d be able to defend Don’t Ask Don’t Tell laws even though she argued against them at Harvard.

11:27 Jay Goodman Tamboli: Sessions says two cases came up while she was SG. Points out ACLU lawyers involved in both.

11:28 Jay Goodman Tamboli: Sessions summarizes the court’s decisions in the two cases.

11:29 Jay Goodman Tamboli: Sessions says Kagan argued the Supreme Court should not hear the appeal from one of the cases.

11:30 Jay Goodman Tamboli: Sessions says neither case was appealed on the law.

11:31 Jay Goodman Tamboli: Sessions asks why Kagan made decision to not appeal the law, if she was fully committed to defending the law.

11:32 Jay Goodman Tamboli: Kagan responds that she thinks she has acted consistent with her responsibility to defend all statutes, including the DADT statutes.

11:33 Jay Goodman Tamboli: Kagan says one of the cases was not appealed because the lower court held that the statute was constitutional.

11:34 Jay Goodman Tamboli: On the Ninth Circuit ruling, Kagan says the case was interlocutory—meaning “in the middle”—so the government can appeal it at a later stage.

11:34 Jay Goodman Tamboli: Sessions had noted there was an interlocutory appeal in the case on the Solomon Amendment.

11:35 Jay Goodman Tamboli: Kagan says she agrees the Ninth Circuit decision undermines DADT, but they had to decide whether to challenge that decision at an early stage or later.

11:35 Jay Goodman Tamboli: Kagan says they discussed the case with DOD and decided to wait.

11:35 Jay Goodman Tamboli: Kagan emphasizes the case is not closed.

11:36 Jay Goodman Tamboli: Kagan says it may be appealed if the government loses on remand.

11:36 Jay Goodman Tamboli: Kagan says they wrote a letter to the Senate Judiciary Committee explaining the decision.

11:37 Jay Goodman Tamboli: Kagan says it would be better to go to the Supreme Court with a fuller record showing the Ninth Circuit’s demand—that there be individual trials for DADT dismissals.

11:38 Jay Goodman Tamboli: With that record, Kagan says, they could then show the Supreme Court what the trials would look like and how they would disrupt the military process.

11:39 Jay Goodman Tamboli: Kagan also notes that the Supreme Court usually prefers to wait until the case is decided rather than take interlocutory appeals. Kagan says there are exceptions, though.

11:40 Jay Goodman Tamboli: Sessions points out her decision agreed with the ACLU’s stance on the case and points out there was an interlocutory appeal on the Solomon Amendment case.

11:40 Jay Goodman Tamboli: Sessions moves to the Commerce Clause.

11:42 Jay Goodman Tamboli: Sessions asks if Kagan has previously expressed any opinions on Lopez and Morrison, and whether she agrees with them. These were two cases (the only two modern cases) where the Supreme Court struck down federal laws as beyond Congress’s power under the Commerce Clause.

11:42 Jay Goodman Tamboli: Kagan says she doesn’t think she’s commented, but the cases are settled law.

11:42 Jay Goodman Tamboli: Sessions asks if Kagan’s definition of “settled law” means anything more than binding precedent.

11:43 Jay Goodman Tamboli: Kagan says she’s used the phrase for several cases. Sessions asks whether “settled law” and “precedent” are interchangeable. Kagan says there is no difference.

11:43 Jay Goodman Tamboli: Kagan says they mean they are decisions of the court and entitled to precedential weight.

11:44 Jay Goodman Tamboli: Sessions says Sotomayor said something similar about Heller, but she was in dissent on McDonald on Monday.

11:44 Jay Goodman Tamboli: Sessions asks if she’s binding herself to vote along with any future challenges to Heller, Lopez, Morrison, or similar cases. Kagan says she won’t say anything binding herself on future cases.

11:45 Jay Goodman Tamboli: Leahy enters into the record a letter supporting Kagan from an Army officer.

11:45 Jay Goodman Tamboli: Graduate of Harvard Law School.

11:47 Victoria Jones: Did Sessions really think Kagan would bind herself to vote along with anything?

11:47 Jay Goodman Tamboli: The letter urges Senator Sessions to refrain from further questioning of Kagan’s activities at Harvard Law.

11:48 Jay Goodman Tamboli: Senator Hatch is up.

11:48 Jay Goodman Tamboli: Hatch is responding to claims the Citizens United decision was activist.

11:49 Jay Goodman Tamboli: Hatch points out the Exxon decision, which has been criticized by several senators today, was written by Justice Souter.

11:51 Jay Goodman Tamboli: Hatch calls Citizens United not “judicial activism” but “correction” of 20-year-old precedent.

11:51 Jay Goodman Tamboli: A return to the doctrine of Buckley v. Valeo.

11:51 Victoria Jones: That’s going to be viewed as an interesting way of looking at it.

11:52 Victoria Jones: Is there a question here?

11:52 Jay Goodman Tamboli: Hatch, in continued non-question, says the 100-year-old precedent claim is based on the Tillman Act, which dealt with campaign contributions. Says not really relevant to Citizens United.

11:53 Jay Goodman Tamboli: No question yet, and he’s talking about something Kagan would definitely term “settled law.”

11:54 Jay Goodman Tamboli: Hatch asks if her arguments in the case gave too much power to judges.

11:55 Jay Goodman Tamboli: Talking about US v. Stevens, the case concerning dog fighting videos. The Supreme Court struck down the law, saying it infringed on the First Amendment.

11:55 Jay Goodman Tamboli: Kagan says the statute was drafted in a way that made it hard to defend.

11:55 Victoria Jones: And crush videos.

11:55 Jay Goodman Tamboli: (Ouch)

11:55 Victoria Jones: Kagan says she’d never heard of them.

11:55 Jay Goodman Tamboli: Victoria: the case was about dog fighting videos. The law was written in response to crush videos, but there have never been any prosecutions for that.

11:56 Victoria Jones: Maybe there should have been…

11:56 Victoria Jones: Just saying…

11:57 Jay Goodman Tamboli: Victoria: Actually, a lot of people have said that “crush videos” are largely a myth. Our associate Matt Schwartz did a podcast show on the case at http://lexappeal.org/

11:58 Victoria Jones: Hmmm, tell that to the hamsters.

11:58 Jay Goodman Tamboli: Kagan says their strategy was to compare the animal cruelty videos to child pornography, which the Supreme Court has ruled can be regulated in order to eliminate the market and remove the incentive to abuse children.

11:59 Jay Goodman Tamboli: Hatch moves back to the military recruiting issue, saying the military recruiters did not have the same ability as other groups to contact students.

11:59 Jay Goodman Tamboli: Kagan says she thinks the military recruiters got an adequate substitute for the services provided to other groups.

12:00 Jay Goodman Tamboli: She says the Office of Career Services is very limited in what it does for groups, only informing students that they groups are coming and providing a location for interviews.

12:00 Victoria Jones: This is really the only “wise latina” that the Republicans have.

12:00 Jay Goodman Tamboli: Hatch is speaking very softly, and everyone (including Kagan) is having trouble hearing him.

12:01 Jay Goodman Tamboli: Hatch reads a quote from an officer who said that what Harvard did was equivalent to chaining and locking the door. Hatch says the law required the same access be given.

12:01 Victoria Jones: Interesting. Hatch is wearing a black jacket with a white shirt and maroon tie. There’s a theme emerging.

12:01 Jay Goodman Tamboli: Kagan says reasonable people can disagree, but she thinks at all times the military had “excellent access” to the students. She notes the veterans organization previously had provided access to students, and the DOD was fine with that.

12:02 Jay Goodman Tamboli: Kagan again notes how minimal the services the Office of Career Services provides in terms of recruiting for all groups.

12:03 Jay Goodman Tamboli: Hatch (still whispering) says he wants to switch topics to abortion.

12:03 Jay Goodman Tamboli: Seems to be bringing up the memos Kagan sent to ACOG, seemingly giving them the language they used in a report. I saw this claim making the rounds on blogs this morning, and I’m curious to see how she responds.

12:03 Victoria Jones: Hatch doesn’t seem to whispering on the teevee.

12:05 Jay Goodman Tamboli: Kagan says the memo is in her handwriting, but she’s not sure who wrote it(?).

12:06 Jay Goodman Tamboli: Kagan says this was a difficult issue for President Clinton.

12:06 Jay Goodman Tamboli: Some background on this issue can be found (from an overtly biased source) at http://www.powerlineblog.com/archives/2010/06/026643.php

12:08 Jay Goodman Tamboli: Kagan says they discussed with ACOG, and they said they couldn’t think of a circumstance where dialation and extraction was the only procedure available, but they also couldn’t think of a situation when it wasn’t the best procedure available.

12:08 Jay Goodman Tamboli: Kagan said they spoke with ACOG to make sure it was consistent with their views.

12:10 Jay Goodman Tamboli: Let me correct: They didn’t say D&X was always the best procedure, but they said that it sometimes could be the best procedure.

12:10 Jay Goodman Tamboli: Hatch says he is bothered that she intervened in that issue in that way.

12:11 Jay Goodman Tamboli: Kagan repeats that this was a hard issue.

12:12 Victoria Jones: Abortion has been on the back burner to military recruitment during this confirmation.

12:13 Jay Goodman Tamboli: Leahy enters into the record a letter from Professor Michael McConnell. McConnell until recently was a federal appeals court judge, and he was considered by President George W. Bush as a possible nominee to the Supreme Court.

12:15 Jay Goodman Tamboli: Leahy emphasizes that McConnell gives a strong endorsement of Kagan.

12:16 Jay Goodman Tamboli: Hatch praises McConnell, noting that McConnell ruled against the Violence Against Women Act, a law Hatch sponsored.

12:16 Jay Goodman Tamboli: Feinstein is up. Says she wants to ask about the establishment clause.

12:17 Jay Goodman Tamboli: Feinstein asks what will be Kagan’s approach to interpreting the Establishment Clause, and how it works with the Free Exercise Clause. She also asks for Kagan’s view on standing.

12:17 Victoria Jones: Feinstein is wearing a very dramatic black pinstripe jacket with a red shell and pearls - so she almost got the black/maroon memo that’s been going around.

12:18 Victoria Jones: Jay - did you get the memo?

12:19 Jay Goodman Tamboli: Victoria: Coincidentally (I swear!) I’m wearing a charcoal suit with a tie that includes maroon stripes.

12:19 Victoria Jones: !!!!!!!!

12:21 Jay Goodman Tamboli: Kagan says that “there needs to be some play in the joints” between the Establishment and Free Exercise Clauses, so that, for example, the government can make allowances without violating the Establishment Clause.

12:22 Jay Goodman Tamboli: Asked about the legal tests she would use, Kagan is going over some of the tests used in earlier Supreme Court cases on religion.

12:22 Jay Goodman Tamboli: The most recent, she says, is the “entanglement” test set out by Justice O’Connor. (It’s notoriously difficult to understand and apply.)

12:23 Jay Goodman Tamboli: Kagan says there are other proposed tests, like a coercion test.

12:24 Victoria Jones: This is way over my head.

12:24 Jay Goodman Tamboli: Kagan going into a lot of explanation on this one. Like lots of the questions, she’s clearly been prepared for this one.

12:25 Victoria Jones: The entanglement test has me entangled.

12:25 Jay Goodman Tamboli: On taxpayer standing—the ability to bring cases challenging governmental actions based on their status as taxpayers—Kagan says she wants to be careful because of pending cases.

12:26 Jay Goodman Tamboli: Kagan says the Court has said normal injury has to be shown, so you can’t sue just because you’re a taxpayer.

12:27 Victoria Jones: So far there just hasn’t been a “macaca” moment in this confirmation hearing.

12:27 Jay Goodman Tamboli: Feinstein praises Kagan’s knowledge and ability to order her answers.

12:28 Jay Goodman Tamboli: Feinstein notes that Kagan would be the fourth female Supreme Court Justice, and her confirmation would mark the first time 3 had served concurrently. But Feinstein notes that women are still a minority on the federal courts, and women still get paid 77 cents for every dollar men make.

12:29 Jay Goodman Tamboli: Feinstein says she’s amazed that, in the Ledbetter case, the Court would hold to a technicality when a woman was so clearly disadvantaged.

12:29 Jay Goodman Tamboli: (Of course, that “technicality” was the language of the law Congress passed.)

12:30 Jay Goodman Tamboli: Feinstein says Kagan a role model for women.

12:30 Jay Goodman Tamboli: Grassley’s turn.

12:30 Jay Goodman Tamboli: Grassley is asking about the Takings Clause—the Kelo decision.

12:31 Victoria Jones: Grassley’s grumpy.

12:31 Jay Goodman Tamboli: Grassley asks if Kagan thinks the Kelo decision was right. No way she’s going to make a judgment.

12:32 Jay Goodman Tamboli: Kagan says Kelo held that “public use” in the Takings Clause meant use for a public purpose, not just use by the public.

12:32 Jay Goodman Tamboli: Kagan says it remains to be seen whether that test would apply in another context, absent a broad revitalization project.

12:33 Jay Goodman Tamboli: Kagan also notes that what the Court did was put the question back in the political process.

12:33 Jay Goodman Tamboli: The Court said states _could_ take property, not that states must, Kagan says. And many states have explicitly said they won’t do that.

12:35 Jay Goodman Tamboli: Grassley asks about pretextual takings.

12:35 Jay Goodman Tamboli: Kagan says she doesn’t remember that exact line from the decision, but she says probably what the Court was saying was that a taking that does not truly serve a public purpose is not valid.

12:37 Jay Goodman Tamboli: Grassley quotes Obama’s book, “The Audacity of Hope,” as saying private property the core stone of liberty. Kagan says she agrees.

12:38 Jay Goodman Tamboli: Grassley asks about a background checks on handgun purchases.

12:39 Jay Goodman Tamboli: Grassley asks whether the president may, through executive order, stop licensed handgun dealers from selling guns without a background check. The court had ruled Congress could not enact that requirement as a law.

12:39 Jay Goodman Tamboli: Grassley says he has a memo that says “Elena’s suggestion” to use executive order.

12:40 Jay Goodman Tamboli: Kagan says President Clinton was committed to the Brady Law keeping guns out of the hands of felons, insane people.

12:41 Jay Goodman Tamboli: Kagan says the court in Prince had struck down the background-check procedure before the law had come into effect because it required the states to do the background checks. The court said it was a violation of the 10th Amendment because it commandeered state officials for federal purposes.

12:41 Jay Goodman Tamboli: The federal background system had not come into effect.

12:42 Jay Goodman Tamboli: Kagan says her idea was to put in place an interim system, and she says as she recalls they never found a way to do it.

12:42 Jay Goodman Tamboli: Grassley asks for clarification: did she think the president had that power?

12:43 Jay Goodman Tamboli: Kagan says she only thought the president could do it with legislative authorization.

12:43 Jay Goodman Tamboli: Grassley confirms: Does Kagan think the president has the power to prohibit the sale of firearms without legislative authorization? Kagan says the president never had that power; the president can’t do that.

12:44 Jay Goodman Tamboli: (So Obama can’t take away your guns.)

12:44 Victoria Jones: I’m back

12:45 Jay Goodman Tamboli: Kagan confirms that self defense is the core of the Second Amendment right recognized in Heller.

12:46 Jay Goodman Tamboli: Grassley asks if marriage is an issue for the states to decide.

12:46 Jay Goodman Tamboli: Kagan says there are cases coming up on that, and she wants to be careful and not prejudge any case that might come before her.

12:47 Jay Goodman Tamboli: Grassley asks if she agrees with the Baker v. Nelson decision that federal courts don’t have jurisdiction to hear marriage questions.

12:48 Jay Goodman Tamboli: Kagan says the court had been required by law to hear that case, and it was summarily decided without briefing or argument. She says there’s a question of what kind of precedential weight to give that.

12:48 Jay Goodman Tamboli: She says she thinks it’s entitled to some precedential weight, but not the same weight a fully briefed and argued decision would get.

12:49 Jay Goodman Tamboli: Grassley asks what has changed since the decision that might change the ruling.

12:49 Jay Goodman Tamboli: Kagan says the task of a judge is to decide the case before him or her.

12:50 Jay Goodman Tamboli: Grassley again asks Kagan what weight she’d give to Baker v. Nelson.

12:50 Jay Goodman Tamboli: Kagan says she’d want to hear arguments on what weight to give it and discuss it with colleagues, but she again says most people think these kinds of decisions get some deference but not as much weight as a fully briefed and argued case.

12:51 Jay Goodman Tamboli: (Note that yesterday the Supreme Court issued a summary disposition in a challenge to the soft money ban, so Kagan’s answers here are very relevant in a variety of cases. http://www.scotusblog.com/2010/06/soft-money-ban-upheld/)

12:52 Jay Goodman Tamboli: We’re going to hear from Specter and then break for lunch.

12:52 Jay Goodman Tamboli: Specter says he thinks he’ll use the full 20 minutes.

12:53 Jay Goodman Tamboli: Specter asks about the Court’s decisions to hear or not hear cases.

12:55 Jay Goodman Tamboli: Specter asks about the case where Holocaust victims brought suit against an Italian insurance company. The government argued the Supreme Court shouldn’t hear the appeal, since they had a policy of giving such claims to international discussions.

12:55 Jay Goodman Tamboli: Specter asks if Kagan would vote to hear the case.

12:55 Jay Goodman Tamboli: Kagan says it’s a live case, and as Solicitor General she continues to represent one of the parties, so she can’t comment.

12:56 Jay Goodman Tamboli: Specter asks whether she’d recuse herself if on the court.

12:56 Jay Goodman Tamboli: Kagan says she would recuse herself, but she doesn’t want to count her chickens.

12:56 Jay Goodman Tamboli: Specter jokes that he’s potentially one of her chickens.

12:56 Jay Goodman Tamboli: Specter presses her for an answer.

12:57 Jay Goodman Tamboli: Specter isn’t happy but says he’ll move on.

12:57 Jay Goodman Tamboli: Specter asks about a lawsuit brought by victims of 9/11.

12:58 Jay Goodman Tamboli: There, he says, the Second Circuit said Saudi Arabia couldn’t be held liable under a federal statute. As SG, Specter said, Kagan said the court was wrong. Specter asks whether Kagan would vote to hear that kind of case.

12:59 Jay Goodman Tamboli: I’m sorry, the SG argued the government should NOT have heard the case.

12:59 Jay Goodman Tamboli: Kagan doesn’t want to undermine the SG’s position.

12:59 Jay Goodman Tamboli: I apologize for the mistakes. The audio in this room has the Senators’s microphones very low, and it’s difficult to hear them.

12:59 Jay Goodman Tamboli: Specter doesn’t like Kagan’s refusal to answer.

1:00 Jay Goodman Tamboli: Specter asks about the Detroit court decision on the Terrorist Surveillance Program. Asks if she would have voted to hear that case.

1:01 Jay Goodman Tamboli: Kagan says this kind of case generally falls within the third category of cases she said the Courts could take, but there is the standing question.

1:01 Victoria Jones: Specter is using a rather hectoring tone.

1:01 Jay Goodman Tamboli: Specter says Kagan said all of that yesterday.

1:01 Jay Goodman Tamboli: Kagan says she hasn’t read the briefs and can’t say how she’d rule, but the standing question is “of some real importance.”

1:02 Jay Goodman Tamboli: If no one knows they’ve been surveilled, Kagan says, that detracts from the ability to reach the question of whether the surveillance is important.

1:02 Victoria Jones: Specter sounds frustrated.

1:03 Jay Goodman Tamboli: Specter asks about the standards for judging Congressional legislation—the rational basis standard and the congruence and proportionality test.

1:03 Jay Goodman Tamboli: Kagan says the “congruence and proportionality” test is currently the law of the court.

1:03 Jay Goodman Tamboli: But she notes it has produced some “extremely erratic results.”

1:04 Jay Goodman Tamboli: She says she can’t say she’d reverse it without arguments and briefing, but she thinks the standard used by the court needs to provide clear guidance to Congress.

1:05 Jay Goodman Tamboli: Specter asks why she needs to read briefs on standards.

1:06 Jay Goodman Tamboli: Kagan says she wants the standard to be subject to serious discussion and criticism before deciding.

1:06 Jay Goodman Tamboli: Specter says he’s inclined to agree with some of the media coverage that’s saying she hasn’t been giving real answers.

1:07 Jay Goodman Tamboli: He notes she quoted him in her law review article years ago about the confirmation process.

1:07 Victoria Jones: Specter doesn’t think it’s useful to pursue these questions.

1:07 Jay Goodman Tamboli: Specter asks what if anything can be done about nominees who don’t follow the promises they make during the confirmation hearings.

1:07 Jay Goodman Tamboli: Specter restates his support for cameras in the Supreme Court.

1:08 Jay Goodman Tamboli: Specter calls “Citizens United” a “repudiation” of just about everything Justice Roberts said at his confirmation hearings.

1:09 Jay Goodman Tamboli: Recess for an hour.

1:09 Victoria Jones: Specter is wearing deep pinstriped blue jacket, white shirt and deep red tie, so it’s close to the memo.

1:09 Victoria Jones: I’ll be intrigued to see if Specter votes for her - I think he’s leaning against.

1:14 Victoria Jones: Leahy says at stakeout that Kagan will be confirmed.

1:15 Victoria Jones: Leahy says she’s been more extensive in her answers than Alito or Roberts.

1:15 Victoria Jones: Leahy says Specter always asks intensive questions.

2:33 Jay Goodman Tamboli: I apologize for the outage. Radio shows.

2:33 Jay Goodman Tamboli: Senator Kyl has just wrapped up.

2:34 Jay Goodman Tamboli: Sorry, Kyl continues.

2:35 Jay Goodman Tamboli: Asking about the Commerce Clause.

2:36 Jay Goodman Tamboli: Kagan says the Commerce clause has been read to give Congress broad powers.

2:36 Jay Goodman Tamboli: But it’s not unlimited.

2:36 Jay Goodman Tamboli: Kagan refers to the Lopez and Morrison cases, giving limits on non-economic activity and activities that are generally the prerogatives of the states.

2:38 Jay Goodman Tamboli: Senator Graham is up.

2:38 Jay Goodman Tamboli: Asks Kagan how Plessy v. Ferguson interpreted the Fourteenth Amendment.

2:39 :

2:39 Jay Goodman Tamboli: Sorry, we’re back.

2:39 Jay Goodman Tamboli: Graham asks about the overruling of Plessy.

2:40 Jay Goodman Tamboli: Graham wondering how the meaning of the Constitution can change, when the words stay the same.

2:40 Jay Goodman Tamboli: Kagan stalling…

2:44 Victoria Jones: Graham asks if it’s fair to consider scientific changes in abortion cases.

2:44 Victoria Jones: Kagan indicates it’s fair in all cases.

2:44 Jay Goodman Tamboli: Graham asking Kagan whether Roe v. Wade can change the same way Plessy did.

2:44 Jay Goodman Tamboli: Graham asks that the Court consider changes in science when considering the point of viability.

2:46 Victoria Jones: Graham asks if other schools at Harvard stopped military recruiting.

2:46 Victoria Jones: Kagan says she doesn’t know.

2:46 Victoria Jones: It was the Office of Career Services.

2:47 Victoria Jones: Graham says she was making a political statement.

2:47 Victoria Jones: Kagan says she was enforcing and defending the school’s anti dsicrimination policy.

2:48 Victoria Jones: Kagan says it was not a political statement.

2:48 Victoria Jones: Graham says he will take her at her word.

2:50 Victoria Jones: Partial birth abortion - Graham asking about language she used in writings at the Clinton White House

2:51 Victoria Jones: Kagan says she had no agenda with the issue

2:52 Victoria Jones: Graham interrupts - says it’s OK, Alito and Roberts had an agenda, disturbing that she says she didn’t have when she should have had

2:52 Victoria Jones: Kagan says she was trying to ensure Clinton’s views carried forward

2:52 Victoria Jones: Graham trying to find out her views on abortion, partial birth

2:54 Victoria Jones: Kagan says she tried to implement the President’s objectives. Graham’s surprised, he’d try to push the law in his direction, and saw an effort to push the law in a direction consistent with her political beliefs.

2:55 Victoria Jones: Deference to political branches, respect for precedent, deciding cases narrowly - her definitation of a good judge

2:55 Victoria Jones: Graham asking about activist judges. Was Thurgood Marshall one?

2:56 Victoria Jones: Can she name one person in the US an activist judge living or dead?

2:56 Victoria Jones: She declines.

2:57 Victoria Jones: Graham raises Israeli Judge Barak.

2:57 Victoria Jones: Graham quotes Barak. Asks what the hell does he mean.

2:58 Victoria Jones: Kagan thinks Barak is wrong. Graham says that makes him feel better, and Kagan says now they’re back to agreeing again. Graham says they’ll end it there.

2:59 Victoria Jones: Graham says he thinks Kagan has tried to push the law in the direction she leans in an ethical way and that’s OK with him.

3:00 Victoria Jones: Sen Ben Cardin (D) MD is up.

3:03 Victoria Jones: Graham, by the way, didn’t get the memo. Wearing a dove grey jacket, white shirt and wide blue, white and black striped tie.

3:04 Jay Goodman Tamboli: Jumping in, Graham says he loves the Geneva Convention. But Graham says an independent judiciary should look over the shoulder of the military tribunals determining whether someone is an enemy combatant.

3:05 Jay Goodman Tamboli: Cardin says he wants to go back to the Establishment/Free Exercise discussion with Senator Feinstein earlier.

3:06 Jay Goodman Tamboli: Cardin asking about case striking down school-sponsored prayer at a graduation. He asks Cardin about Establishment Clause protections for students.

3:06 Jay Goodman Tamboli: Kagan goes back to the coercion test discussed earlier.

3:07 Jay Goodman Tamboli: Cornyn comes up, mentions cats and dogs. I don’t know, either.

3:09 Jay Goodman Tamboli: The guy sitting over Cornyn’s left shoulder (our right) is wearing a tie just like mine!

3:10 Victoria Jones: Good taste!

3:10 Jay Goodman Tamboli: Cornyn asks if Kagan thinks discussion of Marshall’s philosophy was disrespectful. Of course she says she didn’t think it was disrespectful.

3:10 Victoria Jones: What was she going to say?

3:11 Victoria Jones: Uh oh, not a trick question coming…

3:13 Jay Goodman Tamboli: Cornyn asks what role “evolving norms and traditions of our society” has in interpreting the Constitution.

3:13 Jay Goodman Tamboli: Kagan says biggest role is in interpreting Liberty Clause of 14th Amendment.

3:15 Jay Goodman Tamboli: Cornyn reveals the author of the statement he read to Kagan: Goodwin Liu, a pending judicial nominee.

3:15 Jay Goodman Tamboli: Cornyn says Liu concludes the 14th Amendment guarantees right to education, healthcare, etc. Including same-sex marriage.

3:16 Jay Goodman Tamboli: Kagan says she wouldn’t necessarily agree with Liu but would follow the way the Court has looked at things.

3:16 Jay Goodman Tamboli: Kagan refers again to Washington v. Glucksberg, where the Court held that the 14th Amendment Due Process Clause does not protect a right to assisted suicide. http://en.wikipedia.org/wiki/Washington_v._Glucksberg

3:19 Jay Goodman Tamboli: On Harvard Law recruitment, Kagan says recruiters had good access both when going through Office of Career Services and through the Veterans Association.

3:21 Jay Goodman Tamboli: Cornyn asked if Kagan had the power to create an exception to the anti-discrimination policy as dean. Kagan says she had “substantial authority” over the policy.

3:21 Jay Goodman Tamboli: Cornyn notes that the military couldn’t change DADT, since it was a Congressionally-mandated rule.

3:23 Jay Goodman Tamboli: Cornyn asks about the Solomon Amendment.

3:24 Jay Goodman Tamboli: Cornyn asks if Kagan thought Harvard would eventually deny funds to Harvard for not letting the recruiters go through OCS.

3:24 Jay Goodman Tamboli: Kagan says that before she got there, the DOD was fine going through the veterans Organization.

3:25 Jay Goodman Tamboli: If going through the Veterans Organization didn’t impact the recruiting level, Cornyn asks, what impact was there besides stigmatizing the military?

3:25 Jay Goodman Tamboli: Kagan says she honored the military and talked about it often.

3:26 Jay Goodman Tamboli: Cornyn calls it a “separate but equal” process.

3:27 Jay Goodman Tamboli: Kagan say the intention was to give good access to all recruiters.

3:27 Victoria Jones: Cornyn says Kagan says she honored the military in a disbelieving voice.

3:28 Jay Goodman Tamboli: Cornyn is getting into the issues with the limits of the federal government.

3:30 Jay Goodman Tamboli: Cornyn asks if Kagan agrees with New York Times article warning of the danger of increasing states’ rights at the expense of federal power.

3:31 Jay Goodman Tamboli: Kagan says she doesn’t remember that memo, but she does remember writing a memo around that time talking about developments in the law about the federal-state balance.

3:33 Jay Goodman Tamboli: Kagan says she doesn’t know what it means for the federal courts’ federalism changes to be called “reactionary” and “dangerous.” She calls them settled law and says she will not “mess with them.”

3:33 Jay Goodman Tamboli: Cornyn asks Kagan to name any economic activity that the federal government could not regulate under the Commerce Clause.

3:34 Jay Goodman Tamboli: Kagan says she would use the economic/non-economic test, but she refuses to name any activities. She says she would read briefs and listen to arguments.

3:34 Jay Goodman Tamboli: Brief recess.

3:48 Jay Goodman Tamboli: Leahy was back in his seat, but now he’s up again, so who knows when we’ll reconvene. No one at the stakeout.

3:55 Jay Goodman Tamboli: Leahy says we’ll finish this round of questions and then go to closed session. “And that will be it for tonight.” We’ll begin with outside witnesses tomorrow.

3:55 Jay Goodman Tamboli: That means Kagan herself will be finished after today.

3:55 Jay Goodman Tamboli: Senator Whitehouse.

3:57 Jay Goodman Tamboli: Whitehouse asks, since a judge wouldn’t declare he or she has an agenda, one would have to look at the judge’s record. Kagan says she doesn’t want to tell how one judges judges.

4:01 Jay Goodman Tamboli: Whitehouse continues talking about “tell-tales” and tendencies to rule in a certain way, referring to Justices Roberts and Alito. Admits he’s not asking Kagan for a response.

4:03 Jay Goodman Tamboli: Whitehouse says we’ve seen everything short of the judges outright saying they have an agenda.

4:04 Jay Goodman Tamboli: Coburn is up. The Republicans’ last Senator.

4:04 Jay Goodman Tamboli: Coburn asks if anyone had asked Miguel Estrada to write a letter in support of her. Kagan says she doesn’t know.

4:05 Jay Goodman Tamboli: Coburn asks if Kagan thinks Estrada should have been confirmed. She says thinks so.

4:06 Jay Goodman Tamboli: Coburn says Justice Sotomayor has not lived up to two sections of her testimony. He asks Kagan if it’s important to her that the Supreme Court is seen in the light of confidence.

4:07 Jay Goodman Tamboli: Kagan says she wants every citizen to have positive views of every institution, but on the other hand— is cut off by Coburn.

4:07 Jay Goodman Tamboli: Kagan says the country is best served if the people have confidence in the Supreme Court, as well as other institutions.

4:08 Jay Goodman Tamboli: Coburn asks if she agrees that the glue that binds us is blind justice, rule of law.

4:08 Jay Goodman Tamboli: She says she believes that thoroughly.

4:09 Jay Goodman Tamboli: Kagan is cracking jokes left and right. Good spirits.

4:09 Jay Goodman Tamboli: Coburn asks if she has ever contemplated how different her freedom was 30 years ago compared to today.

4:10 Jay Goodman Tamboli: Coburn says one of the problems is that a lot of Americans are losing confidence because they’re losing confidence. He says a lot of people are bothered by the government mandating that people buy health insurance.

4:10 Jay Goodman Tamboli: Coburn asks if it’s important that confidence in governmental institutions is at an all-time low.

4:12 Jay Goodman Tamboli: Coburn says he thinks there’s a problem in the Senator from Rhode Island (Senator Whitehouse) seeing a “conspiracy.”

4:13 Jay Goodman Tamboli: Kagan says she believes confidence in our institutions is “terribly important.” She says the job of the justices is to decide cases, not to think of big questions like restoring American confidence. She says that’s more the job of things like the Senate.

4:15 Jay Goodman Tamboli: Coburn reiterates that he has concerns about the Commerce Clause’s limits. “Tremendous expansion of the federal government.”

4:16 Jay Goodman Tamboli: Surely he’s referring to the Bush Administration…

4:20 Jay Goodman Tamboli: Coburn pleads that Kagan goes back and looks at the federalist papers.

4:21 Jay Goodman Tamboli: Coburn turns to the Second Amendment.

4:21 Jay Goodman Tamboli: Coburn asks if there is a fundamental, preexisting right to bear arms.

4:21 Jay Goodman Tamboli: Kagan says she appreciates how important the right to bear arms is to many Americans, and she accepts Heller. Coburn asks what she believes.

4:22 Jay Goodman Tamboli: Kagan says she does not have a view of what are natural rights independent of the Constitution, and her job as a Justice is to enforce the Constitution and the laws.

4:23 Jay Goodman Tamboli: Coburn: so you don’t believe in the rights referred to in the Declaration of Independence?

4:24 Jay Goodman Tamboli: Kagan says she is not saying she doesn’t believe there aren’t natural rights, but she thinks her job is to enforce the laws and the constitution, and she doesn’t think Coburn would want her to act on her beliefs in natural rights.

4:24 Jay Goodman Tamboli: Coburn asks if Heller complete erases Miller.

4:24 Jay Goodman Tamboli: Kagan says she hasn’t read McDonald.

4:25 Jay Goodman Tamboli: Leahy says Coburn’s time has expired, but he’ll give Coburn 5 minutes when his turn is back.

4:25 Jay Goodman Tamboli: Klobuchar is up.

4:27 Jay Goodman Tamboli: Klobuchar asks Kagan if she remembers how many women were on the Supreme Court 30 years ago. Kagan said 0.

4:28 Jay Goodman Tamboli: Klobuchar asks if she remembers how many women were on the Senate Judiciary Committee. Kagan doesn’t know. Zero.

4:28 Jay Goodman Tamboli: Women weren’t on the Judiciary Committee until after the Anita Hill hearings in 1991.

4:28 Jay Goodman Tamboli: In 1980 there were no women in the Senate. There had been some, but at that time there were none.

4:28 Jay Goodman Tamboli: So, Klobuchar says, freedom is in the eye of the beholder.

4:36 Jay Goodman Tamboli: Leahy is asking who wants more time, almost forgetting Franken hasn’t had his second round yet.

4:36 Jay Goodman Tamboli: Franken starts out saying he’s concerned about the proposed merger between Comcast and NBC-Universal.

4:37 Jay Goodman Tamboli: He says he’s worried about the same company producing content and owning the pipes.

4:37 Jay Goodman Tamboli: Of course, Franken appeared on NBC’s Saturday Night Live for years.

4:38 Jay Goodman Tamboli: Franken says he’s worried Comcast would favor its own programming and disfavor programming from other producers.

4:39 Jay Goodman Tamboli: Franken calls this a First Amendment problem.

4:39 Jay Goodman Tamboli: Franken asks Kagan if she agrees with Justice Black that the First Amendment protects publishing but doesn’t protect against people stopping other from publishing.

4:40 Jay Goodman Tamboli: Sorry, Black said the First Amendment doesn’t protect combining to stop others from publishing.

4:40 Jay Goodman Tamboli: Kagan notes the Comcast-NBC merger is under review by the Department of Justice.

4:40 Jay Goodman Tamboli: Franken asks about net neutrality and says Sotomayor said she thinks the First Amendment protects an open Internet.

4:41 Jay Goodman Tamboli: Franken asks Kagan if she thinks the First Amendment helps preserve a diverse open speech environment.

4:41 Jay Goodman Tamboli: Kagan says that’s one of the goals of the First Amendment.

4:43 Jay Goodman Tamboli: Franken asks if the First Amendment should be relevant when considering antitrust questions. Kagan says that’s a policy issue, not for judges.

4:44 Jay Goodman Tamboli: Franken talks about activism, going back to the Circuit City decision where he says the Court ignored Congress on the arbitration clause for employment contracts.

4:46 Jay Goodman Tamboli: Franken mentions Brown v. Board, asking if it should be lumped in.

4:46 Jay Goodman Tamboli: Kagan doesn’t seem sure where Franken is going.

4:47 Jay Goodman Tamboli: Franken asks about the famous footnote 4 of the Carolene Products case. See http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.#Footnote_Four

4:51 Jay Goodman Tamboli: Kagan says it’s very important that every party gets a fair hearing before the courts.

4:52 Jay Goodman Tamboli: Franken says Justice Marshall’s views were very much in the mainstream.

4:53 Jay Goodman Tamboli: Klobuchar corrects her earlier statement: there was one woman in the Senate in 1980.

4:53 Jay Goodman Tamboli: Kagan jokes, “Isn’t email a wonderful thing? You can learn you’re wrong almost immediately.”

4:54 Jay Goodman Tamboli: Senator Specter introduces into the record a letter from senators to the FCC regarding the Comcase-NBC merger.

4:54 Jay Goodman Tamboli: Leahy yields to Sessions.

4:56 Jay Goodman Tamboli: Sessions brings up Miguel Estrada again.

4:58 Jay Goodman Tamboli: Sessions asks about confidential documents the Solicitor General’s office has refused to produce. Kagan says confidentiality is very important, and all living Solicitors General have opposed the release.

4:59 Jay Goodman Tamboli: Kagan says release of such documents would hinder open debate and discussion in that office.

4:59 Jay Goodman Tamboli: Sessions goes back to the Solomon Amendment.

5:00 Jay Goodman Tamboli: Quotes it as saying military must be giving “access that is at least equal” to that of others. Kagan says their view at Harvard Law was that they were in compliance, and the DOD agreed. When the DOD changed its position, Harvard complied.

5:01 Jay Goodman Tamboli: Sessions reads a statement from Israeli Judge Barack saying that the meaning of the law changes even if the text doesn’t.

5:01 Jay Goodman Tamboli: Sessions defines activist judge as one who lets their personal views…

5:01 Jay Goodman Tamboli: Sessions is distracted by Leahy, says it’s easy to break his train of thought. “My brain is weak.”

5:02 Jay Goodman Tamboli: Sessions says “separate but equal” is inconsistent with the text of the 14th Amendment, so Brown v. Board was returning to plain meaning of text.

5:02 Jay Goodman Tamboli: Sessions isn’t giving Kagan a chance to respond to any of this. He’s just talking.

5:03 Jay Goodman Tamboli: Sessions asks if Harvard Law has a requirement to take Constitutional Law.

5:03 Jay Goodman Tamboli: Kagan says that dating back to when she was a student there, there hasn’t been a requirement, but almost all students take “quite a bit” of constitutional law.

5:04 Jay Goodman Tamboli: Kagan says some constitutional law is covered in a “governmental process” course taken the first year.

5:05 Jay Goodman Tamboli: Sessions says there’s a raging debate on the Court and in scholarship about citations to foreign law.

5:07 Jay Goodman Tamboli: Sessions notes there are references to foreign law in the McDonald dissents, and Justice Scalia makes fun of it in his opinion. Sessions asks what Kagan thinks.

5:07 Jay Goodman Tamboli: Kagan says she thinks the Second Amendment question is so peculiar to our own tradition and heritage that foreign law didn’t have any relevance.

5:08 Jay Goodman Tamboli: Leahy introduces into the record a letter of support from many Solicitors General.

5:08 Jay Goodman Tamboli: Grassley is up again.

5:09 Jay Goodman Tamboli: Going back to Baker, Grassley says his question was whether it was binding until the Supreme Court. He reads a statement that summary decisions are binding.

5:09 Jay Goodman Tamboli: Kagan says she does not know a great deal about this issue, so she looks forward to being further informed about it.

5:10 Jay Goodman Tamboli: Grassley is talking about the Defense of Marriage Act. Asks Kagan if she agrees it doesn’t violate the Full Faith and Credit Clause.

5:10 Jay Goodman Tamboli: Kagan says she thinks that might come before the Court, refuses to comment.

5:11 Jay Goodman Tamboli: Grassley asks if she was involved in Smelt case in Department of Justice.

5:12 Jay Goodman Tamboli: Kagan says she was not the decision-maker in that decision, since it was at the district court level. She says their office looked at briefs, but she can’t reveal internal deliberations.

5:12 Jay Goodman Tamboli: But she says in general lawyers do make decisions about strategy presenting cases, and the Department of Justice is defending DOMA in the courts in that and other cases.

5:14 Jay Goodman Tamboli: Senators getting loopy…

5:15 Jay Goodman Tamboli: Grassley asks about the rights of privacy in the constitution. Asks Kagan if she thinks there are other rights in the constitution, and whether it’s right for a judge to go looking for them.

5:16 Jay Goodman Tamboli: Kagan says rights need a textual basis, but Griswold is settled law. She would find its result in the Liberty Clause of the Fourteenth Amendment.

5:18 Jay Goodman Tamboli: Leahy going to Coburn again.

5:19 Jay Goodman Tamboli: Then we’ll get some closing statements.

5:19 Jay Goodman Tamboli: Coburn returns to the Commerce Clause. Asks whether the economic/noneconomic test supersedes original intent.

5:20 Jay Goodman Tamboli: Kagan says the Court’s Commerce Clause law is that that test is the governing test.

5:21 Jay Goodman Tamboli: Kagan is talking about the value of precedent, even if one thinks the precedent is wrong.

5:22 Jay Goodman Tamboli: Coburn asks if she finds it ironic that the coercion test was applied to high school students who were old enough to go to war.

5:22 Jay Goodman Tamboli: Kagan says she doesn’t want to characterize past decisions.

5:25 Jay Goodman Tamboli: Coburn asks if she was involved with ACOG beyond changing the language of their report. Kagan says she wasn’t involved in any other decisions.

5:25 Jay Goodman Tamboli: Kagan says she was concerned that the language did not accurately show ACOG’s views.

5:25 Jay Goodman Tamboli: Coburn says that he thinks the language they switched to was not accurate.

5:26 Jay Goodman Tamboli: Sessions’s closing statement.

5:26 Jay Goodman Tamboli: Introducing some letters opposed to Kagan’s confirmation.

5:26 Jay Goodman Tamboli: Sounds like military and religious groups, mostly.

5:27 Jay Goodman Tamboli: Sessions reiterates disapproval of citations to foreign law.

5:27 Jay Goodman Tamboli: “We have not consented to be governed by Europe or any other advanced nation.”

5:28 Jay Goodman Tamboli: Sessions going through some 5–4 decisions he likes, such as gun cases.

5:29 Jay Goodman Tamboli: Sessions says he’s worried about “legal progressiveism.”

5:32 Jay Goodman Tamboli: Leahy’s closing statement.

5:32 Jay Goodman Tamboli: He says the good news is that this is probably the last time she’ll have to appear in a public hearing.

5:33 Jay Goodman Tamboli: Leahy summarizing how much Kagan has been through, including courtesy meetings.

5:36 Jay Goodman Tamboli: Recess!

5:37 Jay Goodman Tamboli: Elena Kagan has left the hearing room, never to return (probably).

5:38 Jay Goodman Tamboli: And I’m out of here as well. I’ll be back tomorrow for the outside witnesses, though we don’t yet know what time.