Elena Kagan Confirmation Hearings Liveblog, Day 2

8:49 Jay Goodman Tamboli: Good morning, everyone.

8:49 Jay Goodman Tamboli: Today we get into the real meat of the hearings: the questions.

8:50 Jay Goodman Tamboli: The senators will each have 30 minutes to ask questions of Elena Kagan. They will proceed by seniority, alternating parties, just like they did yesterday with opening statements.

8:50 Jay Goodman Tamboli: Things are still getting set up here. The hearing is scheduled to start at 9:00.

9:00 Jay Goodman Tamboli: Kagan has just entered the room with Senators Leahy and Sessions. Making her way to her table by herself today.

9:00 Jay Goodman Tamboli: Leahy noting that John Paul Stevens’s resignation takes effect today.

9:01 Jay Goodman Tamboli: Leahy says JPS was the first Supreme Court nominee Leahy voted on.

9:02 Jay Goodman Tamboli: Leahy is using his question time to invite Kagan to talk about the values her parents taught her.

9:03 Jay Goodman Tamboli: Judiciary Committee Minority Staff has just handed out a packet to press entitled “Kagan’s Record on Military Recruitment.”

9:04 Jay Goodman Tamboli: Always funny to hear the camera shutters go nuts when anyone gesticulates.

9:08 Jay Goodman Tamboli: Leahy asks Kagan about her relationship with Justice Marshall and her view on the Constitution.

9:09 Jay Goodman Tamboli: Kagan says some parts of the Constitution are clear, like the requirement that you be 30 years old to be a Senator.

9:10 Jay Goodman Tamboli: Kagan says other parts of the Constitution were meant to be interpreted and applied to new situations. For example, she cites the 4th Amendment’s protection against “unreasonable” search and seizure.

9:10 Jay Goodman Tamboli: The Constitution could have given a full listing of police procedures, but she says they knew there would be things the authors hadn’t thought of.

9:11 Jay Goodman Tamboli: “Either way”, Kagan says, “we apply what they said, what they meant to do.” In some sense, she says, we are all originalists.

9:12 Jay Goodman Tamboli: Leahy brings up Kagan’s criticism of earlier confirmation hearings. Asks how she’s going to live up to that standard.

9:13 Jay Goodman Tamboli: Kagan asks if she can go back to what Leahy was saying about Constitutional changes. She mentions the amendment process.

9:13 Jay Goodman Tamboli: Kagan points out that the 14th Amendment fixed a lot of problems with our Constituiton.

9:14 Jay Goodman Tamboli: But mainly, she says, changes come from outside the constitution. She says the original intent of the 14th Amendment was consistent with segregated schools.

9:15 Jay Goodman Tamboli: But, she says, Brown said otherwise. The Court said the principle of the 14th Amendment is inconsistent with segregated schools.

9:15 Jay Goodman Tamboli: Going back to her book review comments on the confirmation hearings. She says she still thinks the basic points were right: the Senate has a very significant role to play, it’s important, and the Senate should take its role seriously, and it should have the information it needs to take it seriously.

9:16 Jay Goodman Tamboli: But…

9:16 Jay Goodman Tamboli: But she says there are limits on that. Some limits in the article. For example, would be inappropriate for a nominee to tell how she would rule on cases or potential cases.

9:16 Jay Goodman Tamboli: Kagan refers to something Senator Hatch said yesterday, noting Hatch isn’t here.

9:18 Jay Goodman Tamboli: She says senators can ask questions that are really veiled attempts to get at how she would rule, and it’s improper to answer that. She said she had discussions with Hatch, and they agreed that she was a little wrong earlier. It would be inappropriate for her to talk about how she feels about past cases, since they might come before the court again.

9:19 Jay Goodman Tamboli: Leahy says he asked Rehnquist when Rehnquist was nominated to be Chief Justice why Rehnquist had not recused himself from a case on which he had testified before Congress.

9:20 Jay Goodman Tamboli: Leahy asks Kagan what principles she’ll use when making recusal decisions. Asks her to name some cases she thinks she’ll have to recuse herself from.

9:20 Jay Goodman Tamboli: Kagan says she in questionnaire said she’d recuse whenever she was signed counsel-of-record. About 10 cases on the docket next year.

9:21 Jay Goodman Tamboli: Also any case in which she played any kind of substantial role.

9:21 Jay Goodman Tamboli: But she says she’d want to talk to her colleagues to see what they would do.

9:22 Jay Goodman Tamboli: Leahy says it erodes the credibility of the court when Justices rule on cases when they have a financial interest.

9:23 Jay Goodman Tamboli: Leahy brings up the DC v. Heller decision, where the Court ruled the Second Amendment protected an individual right to bear arms and yesterday in McDonald v. Chicago the Court ruled that meant states and cities can’t restrict gun rights. Asks Leahy whether there’s any doubt the Second Amendment protects personal right to have gun in home.

9:23 Jay Goodman Tamboli: Kagan says it’s binding precedent, so no doubt.

9:24 Jay Goodman Tamboli: Leahy asks if Kagan had any role in president’s domestic or foreign policy. Kagan says Solicitor General doesn’t usually get involved in policy. Maybe some national security.

9:25 Jay Goodman Tamboli: Leahy asks if she’d consider policy involvement in deciding recusal. Kagan says anything she substantially participated in, she should take very seriously the appropriateness of recusal.

9:26 Jay Goodman Tamboli: Leahy points out a Roberts and Alito said that they took positions consistent with the presidents they worked for, asking Kagan if the same is true of her when she worked for Clinton. Absolutely, she says.

9:26 Jay Goodman Tamboli: Leahy moves to the Harvard Law military recruiting issue. “Did you ever bar recruiters from the US military from” access to students?

9:26 Jay Goodman Tamboli: Kagan says she did not.

9:27 Jay Goodman Tamboli: Leahy asks if the number of students recruited went down while she was there. “I don’t believe it did,” Kagan responds.

9:29 Jay Goodman Tamboli: Kagan says they wanted to make sure students had access to the military at all times, but they had a long-standing non-discrimination policy.

9:29 Jay Goodman Tamboli: She says the military could not sign the pledge not to discriminate on a variety of criteria.

9:29 Jay Goodman Tamboli: “Because of Don’t Ask, Don’t Tell?” Leahy asks. Kagan agrees.

9:30 Jay Goodman Tamboli: Kagan talking about respect for West Point, noting students are required to take a Constitutional Law course there.

9:31 Jay Goodman Tamboli: Leahy reading a letter from a military supporter and Harvard Law grad.

9:32 Jay Goodman Tamboli: Kagan says she has only cried once during this process, and that was when she read the letter from Captain Marrow (sp?) in the Washington Post—the letter Leahy just read.

9:32 Jay Goodman Tamboli: Sessions’s turn.

9:34 Jay Goodman Tamboli: Sessions turns back to Kagan’s discussion of constitutional change earlier. He asks whether there are any other ways the Constitution can change.

9:34 Jay Goodman Tamboli: “The Constitution is the Constitution.” “The Constitution does not change except through the amendment process,” she says.

9:35 Jay Goodman Tamboli: But the Constitution is applied to new circumstances.

9:38 Jay Goodman Tamboli: Sessions asks if she agrees with quote that she is largely a progressive in the mode of Obama himself.

9:38 Jay Goodman Tamboli: Kagan says her politics must be completely separate from her judgement.

9:40 Jay Goodman Tamboli: Sessions reads a quote from someone who calls Kagan “a legal progressive.”

9:40 Jay Goodman Tamboli: Asks Kagan if she agrees.

9:41 Jay Goodman Tamboli: Kagan says she has served in two Democratic administrations— is cut off by Sessions. Kagan says she doesn’t know what that label means.

9:42 Jay Goodman Tamboli: Pressed, Kagan again says she doesn’t know what that label means.

9:42 Jay Goodman Tamboli: Sessions says he thinks he would have to classify her as “someone in the theme of the legal progressives.”

9:43 Jay Goodman Tamboli: Lots of snickering from the press. We don’t know what that label means, either.

9:43 Jay Goodman Tamboli: But, gosh, it sounds bad, right?

9:44 Jay Goodman Tamboli: Sessions asks about the military recruiting. Kagan starts saying the military had access to students. Sessions interrupts; Leahy tells him to let her finish. Sessions pauses for a second, asks her to finish.

9:44 Jay Goodman Tamboli: Kagan explains that at Harvard the student veterans organization sponsored the recruiters coming on campus, so it wasn’t sponsored by the registered student organization.

9:45 Jay Goodman Tamboli: Sessions says that when Kagan took office, the Office of Career Services sponsored recruiting on campus.

9:45 Jay Goodman Tamboli: Kagan says that was the rule after she took office, too.

9:45 Jay Goodman Tamboli: In 2002, she says the DOD came and said they wanted official Office of Career Services sponsorship.

9:46 Jay Goodman Tamboli: Sessions points out Kagan opposed the Don’t Ask Don’t Tell policy. Kagan says she did and does.

9:46 Jay Goodman Tamboli: Kagan calls the DADT policy “unwise and unjust.”

9:47 Jay Goodman Tamboli: She says she was trying to ensure military recruiters had access to students while protecting their own antidiscrimination policy.

9:48 Jay Goodman Tamboli: Sessions brings up a DADT protest at Harvard, where Kagan participated and said she opposed DADT and the Solomon Amendment, which is the law that would have stripped federal funds for barring military recruiters.

9:48 Jay Goodman Tamboli: Sessions noted Kagan participated in lawsuit against DADT.

9:48 Jay Goodman Tamboli: Kagan says lawsuit was against Solomon Amendment, and she didn’t participate. The brief she filed in that case explained that the Harvard arrangement with the veterans organization was consistent with Solomon Agreement.

9:49 Jay Goodman Tamboli: After the policy was struck down by Supreme Court, Harvard barred military recruiters from Office of Career Services, Sessions asks.

9:49 Jay Goodman Tamboli: Kagan says after ruling, went back through veterans organization.

9:51 Jay Goodman Tamboli: Sessions says the 3rd Circuit ruling (saying Solomon Amendment unconstitutional) didn’t apply to Harvard. “Did the law remain in effect at all times at Harvard?”

9:52 Jay Goodman Tamboli: Kagan says that Harvard always complied with the law. After the 3rd Circuit ruling, they changed, but then the DoD said it was appealing to Supreme Court.

9:53 Jay Goodman Tamboli: Sessions accuses Kagan of giving DOD “straight-up runaround” instead of explicitly telling them they had changed the policy.

9:53 Jay Goodman Tamboli: Says she mishandled that.

9:53 Jay Goodman Tamboli: What did the Supreme Court do?, Sessions asks.

9:54 Jay Goodman Tamboli: Kagan says the military did not lose a recruiting season. She says the veterans organization got the word out, and military recruiting went up that season.

9:54 Jay Goodman Tamboli: She says the Supreme Court rejected their amicus brief, arguing their method was in compliance with the Solomon Amendment, unanimously.

9:55 Jay Goodman Tamboli: Kagan says they had gone back and done what the DOD had asked even before the Supreme Court had ruled.

9:55 Jay Goodman Tamboli: Sessions says she had reversed that policy, but the president of the university had overruled her.

9:57 Jay Goodman Tamboli: Sessions asks whether the reversal of the policy enacted after the 3rd Circuit ruling shows they thought that policy was mistaken.

9:57 Jay Goodman Tamboli: Kagan says that DOD came to them and told them they thought the 3rd Circuit decision should have been ignored, since DOD was appealing to the Supreme Court, and Harvard did what DOD wanted.

9:58 Jay Goodman Tamboli: “In fact you were punishing the military,” Sessions says. The protest was near the building where the military was meeting.

9:58 Jay Goodman Tamboli: Military officials complained of a hostile environment on campus.

9:59 Jay Goodman Tamboli: Kagan says she tried every way she could to make clear to all students how much she valued veterans’ service.

9:59 Jay Goodman Tamboli: Sessions points out that in emails Kagan referred to “the military policy,” but the policy was actually one passed by Congress.

10:00 Jay Goodman Tamboli: Sessions accuses Kagan of treating the military in a “second class way,” because she opposed that policy.

10:00 Jay Goodman Tamboli: Kagan says that of course he’s right that the Solomon Amendment was law, but she never suggested military members should be criticized for DADT.

10:01 Jay Goodman Tamboli: She says she was trying to ensure compliance with Harvard’s anti-discrimination policy.

10:01 Jay Goodman Tamboli: She notes she was trying to help the students, some of whom were gay/lesbian and might want to serve in the military.

10:02 Jay Goodman Tamboli: Kagan notes military went up during this years because Kagan worked to make sure recruiters got there and Kagan talked about “the honor of military service.”

10:02 Jay Goodman Tamboli: Sessions says he’s “taken aback by the tone of your remarks.”

10:03 Jay Goodman Tamboli: Leahy speaks over Sessions, saying his time has expired. Sessions keeps talking…

10:03 Jay Goodman Tamboli: Leahy notes the dean of West Point has praised Kagan, gives Kagan some time to respond.

10:04 Jay Goodman Tamboli: Kagan notes her father was a veteran, says she has always tried to make sure she has conveyed her honor to the military and that the military has access to her students.

10:05 Jay Goodman Tamboli: Senator Kohl is up. Senator Feinstein helps him with his microphone.

10:05 Jay Goodman Tamboli: Just got a 70-page packet from Sessions’s office.

10:06 Jay Goodman Tamboli: Looks like an issue brief on Kagan’s experience, time as a clerk, “Harvard Controversy,” judicial heroes, abortion, 2nd Amendment, “Controversies as Solicitor General.”

10:07 Jay Goodman Tamboli: Kohl asks why Kagan wants to be a Justice, why she’s different than other people who want to be on Court.

10:07 Jay Goodman Tamboli: Kagan cites “rule of law.

10:08 Jay Goodman Tamboli: Kohl says Thurgood Marshall cared passionately about civil rights, Ruth Bader Ginsburg passionate about women’s rights. Where are Kagan’s passions?

10:08 Jay Goodman Tamboli: Kagan says she’ll take cases one at a time. She says she doesn’t think it would be right to come in and say she has passions ahead of time.

10:09 Jay Goodman Tamboli: Kohl, clearing reading his questions, asks how she’ll help make a difference in Americans’ lives.

10:10 Jay Goodman Tamboli: Kagan says she doesn’t know which cases will come before her. Court is not like a legislature, where they get to craft an agenda.

10:11 Jay Goodman Tamboli: Kohl notes that the Supreme Court gets to decide which cases to hear, so not just processing cases as they come.

10:11 Jay Goodman Tamboli: Kohl asks which cases will motivate her.

10:11 Jay Goodman Tamboli: Kagan says she’s right that Court gets to pick cases—only about 1 in 100.

10:12 Jay Goodman Tamboli: But Kagan says there are settled standards for deciding which cases to take. Things like circuit splits.

10:13 Jay Goodman Tamboli: Kagan says Court also takes cases where a lower court has invalidated a law of Congress.

10:13 Jay Goodman Tamboli: Or when it’s a very important legal question.

10:14 Jay Goodman Tamboli: Kohl points out Alito asked Senate to look at his judging to see how he’d judge. But Kagan hasn’t been a judge, so what decisions should they look at.

10:15 Jay Goodman Tamboli: Kagan says they should look at her whole live. Solicitor General decisions, tenure at Harvard.

10:15 Jay Goodman Tamboli: Scholarship, speeches.

10:16 Jay Goodman Tamboli: Kohl brings up her 1995 law review article on confirmation hearings. “It’s been half an hour since we referred to” that article, Kagan jokes.

10:17 Jay Goodman Tamboli: Kohl asks how she feels about reconsidering that article.

10:17 Jay Goodman Tamboli: Kagan is giving about the same answer she gave Leahy…

10:17 Jay Goodman Tamboli: When Leahy asked the exact same question…

10:19 Jay Goodman Tamboli: Kohl asks in what direction Kagan would move the Court.

10:19 Jay Goodman Tamboli: Kagan, laughing, says that she would try to decide each case as fairly as she can.

10:19 Jay Goodman Tamboli: Kohl says she wrote in 1995 that that was a fair question.

10:20 Jay Goodman Tamboli: “Well it might be a fair question…” Kagan responds (or doesn’t).

10:20 Jay Goodman Tamboli: Kohl asks for Justices with which she most identifies.

10:20 Jay Goodman Tamboli: Kagan says she admires Justice Stevens and praises him.

10:20 Jay Goodman Tamboli: But she says Justice Kagan would not be Justice Stevens.

10:21 Jay Goodman Tamboli: But she says it would be a bad idea for her to speak about current justices. “My oh my oh me,” Kohl says. “All right, let’s move on.”

10:22 Jay Goodman Tamboli: Kohl asks about judicial philosophy.

10:22 Jay Goodman Tamboli: Kagan says looking at original intent is sometimes best, sometimes not.

10:23 Jay Goodman Tamboli: Judges should always look to the text, though, she says. If the text commands a decision, she says, you’re done.

10:24 Jay Goodman Tamboli: Kagan points to DC v. Heller case, where she says all 9 Justices looked to original intent, though they came to different conclusions.

10:25 Jay Goodman Tamboli: But sometimes it’s not the most appropriate, she says. For example, the First Amendment. She says the framers had a much more limited view of free speech. She says modern court decisions on the First Amendment cites precedent heavily, not original intent.

10:25 Jay Goodman Tamboli: Kohl turns to antitrust.

10:26 Jay Goodman Tamboli: Kohl says Supreme Court recently has made it more difficult to bring antitrust cases, hurting consumers.

10:26 Jay Goodman Tamboli: Kohl asks if Kagan shares this concern.

10:27 Jay Goodman Tamboli: Kagan says she knows several of those cases are ones in which there is considerable debate.

10:28 Jay Goodman Tamboli: Interestingly, 10/11 Democrats on the committee are present. 4/7 Republicans are present.

10:28 Jay Goodman Tamboli: Kagan is talking about specifics of the cases.

10:30 Jay Goodman Tamboli: Kagan’s using her hands. Click, click, click, click.

10:30 Jay Goodman Tamboli: Kohl asks about cameras in the Supreme Court.

10:31 Jay Goodman Tamboli: Kagan says she spoke about this as Solicitor General. She thinks it would be a “terrific thing.” She says some members of the Court have a different view, and she’ll talk to them if she goes.

10:32 Jay Goodman Tamboli: She says she goes to just about every Supreme Court argument, and it’s an incredible sight. The Justices are so smart, prepared, engaged. Questions are rapid-fire.

10:32 Jay Goodman Tamboli: The issues are important ones, too, she starts. “Well, some of them will put you to sleep.”

10:32 Jay Goodman Tamboli: But she also says she understands that some of the current Justices are skeptical and think it would change the way oral arguments go.

10:33 Jay Goodman Tamboli: Having attended many oral arguments myself, I don’t think cameras would make people overestimate the influence of oral arguments on the decisions. It’s not really that interesting, either.

10:34 Jay Goodman Tamboli: Kohl tries to ask about Bush v. Gore, saying the decision itself said it would never come up again.

10:34 Jay Goodman Tamboli: Kagan said the question of whether courts should get involved in elections will come up, and if it does she’ll read the briefs and discuss with her colleagues.

10:36 Jay Goodman Tamboli: Leahy says we’ll have Hatch and Feinstein, then 10-minute break. Probably break for lunch at 1, starting back at 2:20.

10:36 Jay Goodman Tamboli: Hatch says he’s going to ask a series of questions and would like a yes/no if she can.

10:37 Jay Goodman Tamboli: On First Amendment, does Kagan agree that First Amendment was intended to restrict federal government.

10:37 Jay Goodman Tamboli: Kagan says it restricts Congress and other state actors.

10:37 Jay Goodman Tamboli: Is political speech at core of First Amendment. Kagan says yes.

10:38 Jay Goodman Tamboli: Wrote memo in Clinton White House that “unfortunately true” that campaign finance restrictions implicate First Amendment. Do you reject idea that spending is speech?

10:39 Jay Goodman Tamboli: Kagan: that quote was not written by me, but was talking points for someone else, meant to reflect administration’s position.

10:39 Jay Goodman Tamboli: Hatch turning to Citizens United. Do you believe it was wrongly decided?

10:40 Jay Goodman Tamboli: Kagan: I argued strenuously. When preparing for arguing, first person I convince is myself. So believed that she had a strong case.

10:42 Jay Goodman Tamboli: Hatch: Do you believe people join or donate to non-profit advocacy groups because they agree with that group and amplify?

10:43 Jay Goodman Tamboli: Kagan: Statute applied to many different kinds of corporations.

10:44 Jay Goodman Tamboli: Hatch: Obama called decision victory for powerful interests, but statute applied to many groups including labor unions. Do you think that unions are powerful interests that drown out the voices of ordinary Americans?

10:44 Jay Goodman Tamboli: Kagan: Congress had compiled very extensive record, had found these groups had a kind of access/influence on Congress.

10:45 Jay Goodman Tamboli: Hatch says there are lots of small S-corporations. Before Citizens United, could be barred from using budget to buy ads, etc., before election. Do you believe Constitution gives Congress this much power?

10:47 Jay Goodman Tamboli: Kagan: In Solicitor General’s office, we defend statutes—
Hatch: Let me ask—
Leahy: Let her answer.

Hatch jokes that they (he and Leahy) need to have a little back and forth every once in a while or “this place would be boring as hell.”

10:47 Jay Goodman Tamboli: Hatch: Do you believe Constitution allows to require S-corps to read through all these regulations?

10:48 Jay Goodman Tamboli: Kagan: Congress made a determination here.

10:48 Jay Goodman Tamboli: Kagan: Court rejected that position.

10:51 Jay Goodman Tamboli: Kagan: Scalia said Congress would protect incumbents. But I said to Justice Scalia that all the empirical evidence is that corporate expenditures protect incumbents.

10:51 Jay Goodman Tamboli: Hatch: “Well tell that to Blanche Lincoln.”

10:53 Jay Goodman Tamboli: Hatch is asking about the argument made in Citizens United that the government’s theory of the First Amendment would have allowed Congress to ban books.

10:53 Jay Goodman Tamboli: Kagan: the statute only applies to corporations and unions, not PACs.

10:55 Jay Goodman Tamboli: Hatch asks about Kagan’s statements during second oral argument, that there might be reasons not to apply it to books. But Kagan said only classical election materials.

10:55 Jay Goodman Tamboli: Our White House Correspondent Victoria Jones will be joining us shortly in the liveblog…

10:56 Victoria Jones: Late joining - a few thoughts on Session belatedly.

10:57 Jay Goodman Tamboli: Kagan says movies were covered by law, and Hatch brings up a Kennedy opinion that criticized “jurisprudence of minutia.” Seems to be arguing against movie/pamphlet distinction.

10:57 Victoria Jones: Sessions called Kagan “Dean” not “General”. Most recently she was Solicitor General of the US, that is the courtesy title most senators are using.

10:57 Jay Goodman Tamboli: “Nobody uses books to campaign,” Kagan says. “That’s not true,” Hatch responds.

10:58 Victoria Jones: Immediately after Kagan said she preferred not to be labeled as a legal progressive or anything else, Session promptly called her a legal progressive

10:58 Jay Goodman Tamboli: Kagan: but an as-applied Constitutional challenge could be made to it.

10:59 Jay Goodman Tamboli: Hatch is talking about Forbes magazine being sued while Steve Forbes was running for president. Says used same statute to claim Forbes magazine’s publishing of a regular column by Steve Forbes was an illegal contribution.

11:00 Victoria Jones: At the end of his round, Sessions was livid as he summed up his view of her role in the Harvard military recruiting issue. He clearly thinks she’s not being truthful.

11:00 Jay Goodman Tamboli: Hatch: Do you really believe the Constitution gives the federal government this much power to determine who says what about the government?

11:01 Jay Goodman Tamboli: Judiciary Committee Minority staff has just handed out a sheet of quotes from military recruiters critical of Harvard’s handling of military recruiting on campus.

11:01 Jay Goodman Tamboli: Kagan drawing distinction between her actions as lawyer and what she would do as a judge.

11:02 Jay Goodman Tamboli: Hatch is using this hearing to bash Obama and Democrats for criticizing the Citizens United decision. It’s not really clear what Kagan’s role is here.

11:03 Victoria Jones: Kagan is 3 (wins) 2 (losses) in the cases she’s argued as Solicitor General before the Supreme Court.

11:03 Jay Goodman Tamboli: “I’m not here to beat up on President Obama,” Hatch says.

11:03 Victoria Jones: Really?

11:04 Victoria Jones: A lost opportunity politically, if not.

11:04 Jay Goodman Tamboli: After a long speech, Hatch asks if Kagan agrees. Kagan asks him to reread Justice Burger quote.

11:05 Jay Goodman Tamboli: Hatch putting into the record a long list of cases upholding corporate speech rights.

11:05 Victoria Jones: Hatch is always a snappy dresser.

11:06 Jay Goodman Tamboli: I think this is probably hard for Kagan. As a former law professor, she probably has the instinct to take up an argument with Hatch even if she has nothing to gain.

11:07 Jay Goodman Tamboli: Kagan talks about the case, even though she doesn’t need to, defending her stance when arguing the Citizens United.

11:07 Jay Goodman Tamboli: Senator Feinstein is up.

11:08 Jay Goodman Tamboli: Feinstein asking Kagan to clear up statements about banning books. Kagan says never applied to books, and if it were there would be a Constitutional challenge.

11:09 Victoria Jones: Feinstein wearing peacock blue.

11:09 Jay Goodman Tamboli: Feinstein says she wants to have a little “heart to heart talk.” “Just you and me?,” Kagan asks, jokingly.

11:09 Victoria Jones: Guns!!

11:09 Jay Goodman Tamboli: Feinstein bringing up guns.

11:10 Jay Goodman Tamboli: Feinstein talking about people killed or injured by stray gunfire.

11:10 Jay Goodman Tamboli: Feinstein seems concerned by Kagan saying recent gun rulings are settled law, despite their 5–4 rulings.

11:11 Jay Goodman Tamboli: The thing is, a 5–4 ruling by the Supreme Court has as much force as a unanimous one. Same way a law passed by the Senate 51–50 is just as much law as one passed 100–0.

11:11 Jay Goodman Tamboli: Feinstein asks Kagan why Heller and McDonald are settled law even though they’re against earlier precedent.

11:11 Jay Goodman Tamboli: Kagan: there are reasons to overrule precedent

11:12 Jay Goodman Tamboli: Kagan: but those cases (Heller and McDonald) are decisions of the Court and are precedent.

11:12 Victoria Jones: Such an interesting question, and one people raise to me on the radio about 5-4 decisions.

11:12 Jay Goodman Tamboli: Kagain: “It’s not enough, even if you think something is wrong, to say” they got it wrong and overrule it.

11:12 Jay Goodman Tamboli: Roe v. Wade.

11:13 Jay Goodman Tamboli: I’ve been watching for Norma McCorvey (a.k.a. Jane Roe) in the public section of the hearing room. She did make an appearance during Sotomayor’s confirmation and stood up and shouted. Haven’t seen her yet this year.

11:14 Jay Goodman Tamboli: Feinstein asks about 2007 Carhart decision approving statute without exception for health of mother.

11:14 Jay Goodman Tamboli: No way Kagan’s going to answer this…

11:14 Jay Goodman Tamboli: Kagan says the holding of Roe and Doe v. Bolton was that mother’s health must be protected.

11:14 Victoria Jones: Robert Bork spoke out strongly against Kagan last week on abortion.

11:15 Jay Goodman Tamboli: Kagan says Carhart situation involved procedure where mother’s health was in question, but ongoing precedent is that mother’s health must be considered.

11:15 Victoria Jones: Robert Bork might not be the poster child for a Supreme Court hearing as he got bounced.

11:16 Jay Goodman Tamboli: Victoria: You have to admit Bork had an interesting confirmation process, though.

11:16 Victoria Jones: Riveting.

11:16 Jay Goodman Tamboli: Feinstein asks about president’s authority to detain individuals under law of armed conflict.

11:17 Jay Goodman Tamboli: Kagan: The scope of detention authority continues to be the subject of a number of cases.

11:18 Jay Goodman Tamboli: She says she participated in some of those decisions. Obama administration has definition of “enemy belligerent.”

11:18 Jay Goodman Tamboli: But, Kagan says, there are a number of uncertain questions that will probably come before Court.

11:19 Victoria Jones: Liberals are a bit leery of Kagan in this area.

11:20 Jay Goodman Tamboli: Feinstein is looking for some kind of limiting principle in what Kagan is saying, but Kagan is just describing the Obama administration’s position. Probably saying too much, if you ask me.

11:20 : What’s Kagan’s position on the Geneva Conventions?

11:22 Jay Goodman Tamboli: Feinstein is asking about the Foreign Intelligence Surveillance Act, asking Kagan whether the “exclusivity” provision is binding.

11:23 Jay Goodman Tamboli: Kagan says the situations where the president can act despite Congress are “few and far between.”

11:23 Victoria Jones: I’ve noticed that Kagan is at risk of saying too much in her answers. Maybe a professorial tendency?

11:23 Jay Goodman Tamboli: As an example, she cites Congress trying to take away the president’s pardon power. There, the president could probably do it anyway, since the Constitution gives her that power.

11:24 Jay Goodman Tamboli: Victoria: she’s been working in the administration recently, where Sotomayor had been a judge and knew to be quiet.

11:24 Victoria Jones: What the Republicans are looking for is an answer is that is “out of the mainstream” that will give them an opening.

11:24 Jay Goodman Tamboli: Feinstein is asking about detentions and whether the location of detainment matters. Kagan says it’s likely to come before the Court.

11:24 Victoria Jones: Yes, but I sense that she loves the debate, and must rein herself in.

11:25 Jay Goodman Tamboli: Victoria: Law professor at heart.

11:28 : Assuming Kagan believes the US is officially “at war” with Afghanistan—then legally under the Geneva Conventions—the US can hold detainees in Guantanamo until the war is over. But Kagan’s view seems mixed.

11:31 Jay Goodman Tamboli: In response to a question from Feinstein about a ruling on pollution law, Kagan says the Court tries to interpret statutes with respect to what Congress intended. If there a delegation to an agency, the Court tries to defer to that agency as long as the agency’s interpretation is within the law.

11:31 Victoria Jones: That’s right.

11:31 Jay Goodman Tamboli: Kagan notes that her field is administrative law, so this is her specialty.

11:32 Jay Goodman Tamboli: Kagan says agencies are the experts and agencies have political accountability, so they’re better suited for this than courts.

11:33 Jay Goodman Tamboli: Feinstein asks about laws that give citizen groups standing to sue over environmental law violations. She says cases have held the citizens can’t sue, because they can’t prove they’ve been individually harmed.

11:34 Jay Goodman Tamboli: So she asks Kagan if it’s possible for citizens to demonstrate harm, for Constitutional purposes.

11:34 Jay Goodman Tamboli: Kagan: The answer is yes?

11:34 Jay Goodman Tamboli: Sounds like Kagan is going into a law-professor lecture on legal standing.

11:35 Jay Goodman Tamboli: Is she going to mention that John Roberts argued the case that established these standards?

11:35 Victoria Jones: Yes, if you’re growing extra heads and antennae due to the sludge the company discharged.

11:36 Jay Goodman Tamboli: Kagan says there has to be a showing that the plaintiff, specifically, has been injured, but she says Congress can define a group of people who are injured.

11:36 Victoria Jones: Feinstein mentions asthma - tougher to prove.

11:37 Jay Goodman Tamboli: 10-minute break, so I’m headed to the stakeout.

11:40 Jay Goodman Tamboli: Leahy says Kyl will be up after the break. He’s usually quite feisty.

11:43 Jay Goodman Tamboli: Sessions says he’s more troubled today than he was yesterday. Says the White House has provided inaccurate information about recruiting at Harvard.

11:44 Jay Goodman Tamboli: Sessions says Kagan’s statements that she reached agreement with military is wrong. He says DOD threatened lawsuit.

11:45 Jay Goodman Tamboli: Says DOD internal documents say Harvard admitted problem with their procedures.

11:46 Victoria Jones: Sessions says he feels less comfortable after session with Kagan than before.

11:47 Jay Goodman Tamboli: Sessions says Hatch’s examination of Citizens United was “brilliant.”

11:47 Victoria Jones: Sessions saying Kagan was not rigorously accurate.

11:48 Jay Goodman Tamboli: “There’s not two truths about what happened at Harvard,” Sessions says.

11:48 Victoria Jones: That means Kagan was not telling the truth.

11:48 Victoria Jones: That means Kagan was lying.

11:48 : so sessions went from 0 to -1 comfort, who cares

11:56 Jay Goodman Tamboli: Senator Kyl (R-Ariz.) is up.

11:58 Jay Goodman Tamboli: Kyl quotes Obama talking about deciding cases, saying normal legal procedure in hard cases only takes you 25 miles of a 26-mile marathon, and the rest is decided according to what’s in a judge’s heart.

11:58 Jay Goodman Tamboli: Kagan: “I think it’s law all the way down.”

11:59 Jay Goodman Tamboli: But Kagan says people can disagree on what the statutory or Constitutional text means.

11:59 Victoria Jones: Kyl wears a baby blue tie with white polka dots and a white shirt.

12:00 Jay Goodman Tamboli: Kyl is wearing his jacket. That’s rare for him.

12:00 Victoria Jones: That’s right, he’s always the one guy in the room in shirt sleeves.

12:01 Jay Goodman Tamboli: Kyl asks if Kagan thinks judges should take into account whether one side is powerful or a corporation. Kagan says courts have to be level playing fields.

12:02 Victoria Jones: Not a surprising ansawer.

12:02 Jay Goodman Tamboli: Kyl asks whether that means that parties coming to court with uneven positions, the court’s job is to make the positions the same. “No, no, no,” Kagan says.

12:03 Jay Goodman Tamboli: Smiling, Kagan says that one of the remarkable things about watching the Supreme Court is that the Justices give the attorney arguing on behalf the government just as hard a time as anyone else.

12:03 Victoria Jones: Kagan says that’s the way it should be

12:05 Jay Goodman Tamboli: One interesting thing about this confirmation is that the Republican senators are each bringing their own line of attack. It’s not a unified “wise Latina” attack like we had last year.

12:05 Victoria Jones: Thurgood Marshall was a theme yesterday, as an “activist” judge.

12:06 Jay Goodman Tamboli: Kyl asks about memos Kagan wrote while clerking for Justice Marshall.

12:08 Jay Goodman Tamboli: Kyl asks Kagan what she thinks Marshall would think about what Democratic senators are saying about the Court’s recent decisions. Got that?

12:08 Victoria Jones: Not really…

12:08 Jay Goodman Tamboli: Kagan: If you confirm me, you’ll get Justice Kagan, not Justice Marshall.

12:09 Victoria Jones: Would Kagan base cases on those disadvantaged or on the facts of the case, and the law?

12:09 Jay Goodman Tamboli: To be fair, I should note that Republicans now outnumber Democrats in the room (6 vs. 5).

12:10 Victoria Jones: Kagan dryly refuses to characterize the court politically, saying she one day hopes to join it.

12:12 Jay Goodman Tamboli: Kyl asks if she’s written anything that would confirm what she says is her approach to judging. No writings, she says, but look at her actions.

12:14 Jay Goodman Tamboli: Responding generally to Kyl’s criticisms of memos Kagan wrote while clerking for Marshall, Kagan is explaining the cert process. The clerks would look at every appeal to the Court and try to decide what Justice Marshall would probably want to do.

12:15 Victoria Jones: Kagan repeats that the role of the clerks was to “channel” Justice Marshall who was 80 when she was 27,

12:15 Jay Goodman Tamboli: Asked if she would approach cert decisions the same way, Kagan again says there are standard criteria for picking cases: circuit splits, invalidations of federal statutes, extremely important national interests.

12:16 Jay Goodman Tamboli: Kyl brings up memo where Kagan wrote “It’s even possible the good guys might win this one.” Kagan says she was referring to the party whose legal arguments she thought Marshall would favor.

12:17 Victoria Jones: Here we go - the NRA and the KKK

12:18 Victoria Jones: Kagan says she was quoting or paraphrasing someone else, but was telephone notes.

12:18 Victoria Jones: The KKK and NRA is a “ludicrous comparison”

12:21 Jay Goodman Tamboli: Kyl is asking about case challenging Arizona law that allows revocation of business licenses when businesses knowingly hire illegal aliens. Kagan argues as Solicitor General that the Supreme Court should take the case.

12:21 Jay Goodman Tamboli: Asked why, Kagan says the argument was that the law was preempted by Congress, meaning the federal Congress had decided it would handle the issue rather than leaving it to the states.

12:22 Victoria Jones: Didn’t the Supreme Court decide to take the case yesterday? Or am I wrong?

12:25 Jay Goodman Tamboli: The Supreme Court decided yesterday that it will hear the case.

12:27 Jay Goodman Tamboli: Kagan argues that the federal law prohibits states from fining businesses, so it should also prohibit revoking the business license. Kyl says business licensing is something that states generally handle, so it’s different, but he says the Supreme Court will consider the arguments.

12:28 Jay Goodman Tamboli: Senator Feingold is up, after which we will break for lunch for approximately an hour.

12:28 Jay Goodman Tamboli: Feingold jumps back into Citizens United, asking about banning books.

12:28 Victoria Jones: I just noticed Leahy’s very dapper grey pin striped suit, with flashy broad striped tie.

12:29 Jay Goodman Tamboli: Feingold notes that McCain-Feingold only talks about radio and TV, and says it was the Supreme Court that brought up the books question, asking Kagan whether that was unusual.

12:29 Victoria Jones: Feingold may give her a hard time - from the left.

12:29 Jay Goodman Tamboli: Kagan says the government asked the Court to decide the case on other grounds, but it didn’t.

12:29 Jay Goodman Tamboli: Kagan: It is an unusual action, yes.

12:30 Jay Goodman Tamboli: Kagan is not sure whether to say that the Court’s action calling for reargument was unusual.

12:30 Jay Goodman Tamboli: Kagan only says that the case didn’t come to the Court with the questions on which it was originally decided.

12:30 Jay Goodman Tamboli: Feingold asks Kagan if it surprised her that the decision caused such an uproar. She says she’s not an expert on public reaction, won’t comment.

12:31 Victoria Jones: Yes, you don’t want Scalia asking you what you meant in the Supreme Court lunch room over smoked turkey wraps.

12:32 Jay Goodman Tamboli: Feingold asking whether the president can ever violate criminal law.

12:32 Jay Goodman Tamboli: Through Commander-in-Chief power

12:33 Jay Goodman Tamboli: Kagan cites an example she attributes to Feingold of Congress passing a law making someone else the Commander in Chief. She says the president could ignore that law.

12:33 Victoria Jones: Kagan knows of no example of the Court upholding the President violating criminal law

12:34 Victoria Jones: Comforting.

12:34 Jay Goodman Tamboli: Feingold brings up incident where Attorney General Ashcroft was asked to sign off on the wiretapping program from his hospital bed.

12:35 Victoria Jones: Feingold asks what prompted her to talk about it

12:36 Victoria Jones: Kagan says Ashcroft took a really principled stand

12:37 Victoria Jones: Feingold - considered a handsome man - is sporting a dark grey suit, white shirt, and maroon tie with white polka dots - rather conservative.

12:38 Jay Goodman Tamboli: Feingold is asking Kagan about how she would approach a challenge to gun laws short of the outright bans already struck down by the Supreme Court.

12:38 Jay Goodman Tamboli: Kagan says she hasn’t read all of yesterday’s McDonald opinion. I haven’t, either. It’s very, very long.

12:38 Jay Goodman Tamboli: Kagan says scholars disagree on the level of scrutiny imposed by the Heller decision.

12:39 Jay Goodman Tamboli: I just looked: yesterday’s McDonald decision on gun rights is 214 pages.

12:39 Jay Goodman Tamboli: Kagan notes that her work in the Clinton White House was all well before the Heller decision, so analysis of gun rights was different.

12:43 Victoria Jones: Working in White house was law and politics at the same time, Kagan says.

12:43 Victoria Jones: It doesn’t have much to do with what she would do as a judge, Kagan says.

12:44 Jay Goodman Tamboli: More handouts from Republican staff about the military recruiting at Harvard…

12:44 Victoria Jones: Kagan thinks her experience in the White House is valuable in that it taught her to respect the other branches of government.

12:45 :

12:45 Victoria Jones: Feingold says it’s an excellent answer.

12:46 Victoria Jones: Feingold’s talking about Exxon Valdez.

12:46 Jay Goodman Tamboli: Feingold is turning to the damage award in the Exxon Valdez oil spill case. Senator Whitehouse in his opening statement referred to this to criticize the Supreme Court’s decision to limit the award to less than the jury decided.

12:47 Jay Goodman Tamboli: Feingold asks Kagan what she thinks about courts protecting people from corporate misconduct. Kagan says court should protect people injured by misconduct by corporations or anyone else.

12:47 Jay Goodman Tamboli: Kagan says the Supreme Court decided that case on maritime law basis.

12:48 Jay Goodman Tamboli: It sounds like Kagan is defending the decision. What does she stand to gain by doing that?

12:48 Jay Goodman Tamboli: Kagan notes that Congress has the power to overrule those decisions.

12:48 Jay Goodman Tamboli: Baseball jokes. I’m lost.

12:49 Victoria Jones: And yet Feingold didn’t press her harder.. Interesting.

12:49 Jay Goodman Tamboli: Feingold is asking how Kagan can be in touch with small-town Americans, since she’s lived in big cities her whole live.

12:50 Jay Goodman Tamboli: Kagan says she hopes she’s able to see beyond her own background and listen.

12:51 Jay Goodman Tamboli: Feingold asks Kagan about what ethical questions may face the Court. Recusal, etc.

12:52 Jay Goodman Tamboli: Feingold asks if Kagan thinks Justices should be allowed to have contact with parties outside the normal court setting.

12:52 Jay Goodman Tamboli: She says she really hasn’t thought about it.

12:53 Jay Goodman Tamboli: My take: with the amount of paperwork filed in a Supreme Court case, I don’t know what they’d ask if they did meet with the parties.

12:53 Jay Goodman Tamboli: Feingold asks about the Supreme Court’s ruling last week in favor of forcing arbitration even for challenges to arbitration clauses.

12:54 Jay Goodman Tamboli: Kagan says she hasn’t read that decision yet.

12:55 Jay Goodman Tamboli: Kagan says Courts should defer to Congress on this kind of thing.

12:55 Jay Goodman Tamboli: Feingold brings up the AIG bonuses.

12:56 Jay Goodman Tamboli: Asks how the Court should consider government regulation of big industries. Kagan says it’s a broad question.

12:57 Jay Goodman Tamboli: Feingold brings up the “czar” thing. He points out Kagan wrote a long article on presidential power directing domestic policy.

12:57 Jay Goodman Tamboli: He asks Kagan what she thinks about policy making by “czars” not confirmed by the Senate.

12:58 Jay Goodman Tamboli: Kagan says the president wants advisors, but Congress wants accountability. “I think that the balance between those two… probably is most appropriately determined by the political branches themselves.”

12:59 Jay Goodman Tamboli: Recess for lunch!

2:01 Jay Goodman Tamboli: We’re still on recess for a while. Senator Leahy is scheduled to attend a vote on the Senate floor at 2:15, and he said he’d be back to reconvene the hearing as soon as he’s done that.

2:16 Jay Goodman Tamboli: They’ve just turned the lights in the room back up, so maybe Leahy is on his way back.

2:25 Jay Goodman Tamboli: Leahy is back, but we haven’t been gaveled in yet.

2:28 Jay Goodman Tamboli: We’re back, and Senator Grassley is leading off.

2:29 Jay Goodman Tamboli: Grassley is asking what kinds of views and attitudes Kagan would bring to the Court.

2:30 Jay Goodman Tamboli: Different Justices approach statutory and constitutional interpretation differently, Kagan says, and the Senate has the duty to delve into that.

2:30 Jay Goodman Tamboli: She says she spoke about this earlier with Senator Leahy.

2:31 Jay Goodman Tamboli: Text, history, tradition, and precedent should all be considered, she says.

2:32 Jay Goodman Tamboli: Grassley asks about the Second Amendment, noting a DC Circuit case that found the amendment only protected a collective right. That ruling was later overruled by the Supreme Court in DC v. Heller.

2:33 Jay Goodman Tamboli: Kagan wrote a memo to Justice Marshall about the earlier case, where she said she wasn’t sympathetic to the challenger’s arguments. Grassley asks why she wasn’t sympathetic.

2:33 Jay Goodman Tamboli: Kagan says at the time no court had ruled the Second Amendment protected an individual right.

2:33 Jay Goodman Tamboli: Kagan notes none of the Justices voted to take that case.

2:34 Jay Goodman Tamboli: But, Kagan says, going forward the Heller gun ruling is precedent.

2:35 Jay Goodman Tamboli: Grassley asks Kagan’s personal opinion on what the Second Amendment means. She says she hasn’t looked at the historical analysis for herself, so she doesn’t know.

2:37 Jay Goodman Tamboli: Grassley: Did the Second Amendment codify a pre-existing right, or was it a new right?

2:38 Jay Goodman Tamboli: This is an interesting question, because it leads to the question of what other rights exist even outside the Constitution. See also Ninth Amendment.

2:38 Jay Goodman Tamboli: Kagan says it’s her job, first, to apply the Constitution.

2:39 Jay Goodman Tamboli: Grassley asks if the Second Amendment is a fundamental right. Kagan says that’s what the Court ruled yesterday.

2:39 Jay Goodman Tamboli: Grassley asks for her personal opinion.

2:39 Jay Goodman Tamboli: Kagan says they’re settled law and entitled to all the weight the Supreme Court has.

2:40 Jay Goodman Tamboli: Grassley asks if she’ll follow stare decisis to uphold Heller and McDonald. Kagan says she will, as she will for any case.

2:40 Jay Goodman Tamboli: Grassley asks about students being required to take international law at Harvard.

2:42 Jay Goodman Tamboli: Grassley asks why it’s more important for students to take international law than US Constitutional law.

2:43 Jay Goodman Tamboli: Kagan says that they teach Constitutional Law in the 2nd and 3rd year, since students are better equipped to understand the details and subtlety after their first year.

2:43 Jay Goodman Tamboli: Having taken Constitutional Law in my first year, I think I agree.

2:43 Jay Goodman Tamboli: Though a lot of schools (mine included) have additional classes on Constitutional law for people who are interested.

2:44 Jay Goodman Tamboli: Unfortunately, I have to step out for a few minutes to do a radio show. I will return shortly.

3:01 Jay Goodman Tamboli: Sessions is complaining that Leahy, as chairman, is responding to some of the senators statements.

3:03 Jay Goodman Tamboli: Senator Specter is up.

3:04 Jay Goodman Tamboli: Specter is complaining of the consolidation of power in the executive and the Supreme Court, at the expense of the legislature.

3:05 Jay Goodman Tamboli: Specter is talking about how many Republicans are praising the application of the Second Amendment to the states, even though years ago they complained loudly about the Warren Court’s application of other amendments to the state.

3:08 Jay Goodman Tamboli: Specter is aggressively asking what deference she would give to Congress, asking if she thinks the Citizens United decision was disrespectful. Kagan refuses to characterize the decision. Specter says he’ll move on.

3:09 Jay Goodman Tamboli: Specter asks whether the method of reasoning of Supreme Court Justices is superior to that of Congress. Kagan says, to the contrary, Justices should defer to Congress’s ability to undertake factfinding.

3:10 Jay Goodman Tamboli: Specter is being harsh. “I know all that.” “I’m going to move on.”

3:12 Jay Goodman Tamboli: Specter asking about the City of Boerne test of congruence and proportionality in legislation. Some info at http://en.wikipedia.org/wiki/City_of_Boerne_v._Flores

3:13 Jay Goodman Tamboli: Kagan says that test has led to some apparently inconsistent results.

3:14 Jay Goodman Tamboli: Kagan says there is a question about whether the Boerne test is unworkable. She refuses to say whether it is or is not unworkable, saying she hasn’t delved into it.

3:14 Jay Goodman Tamboli: Kagan says it’s not fair to Congress to keep moving the goal posts.

3:15 Jay Goodman Tamboli: Specter says he has raised this issue with Kagan privately, so why can’t she answer?

3:16 Jay Goodman Tamboli: Without waiting for an answer, Specter moves back to deference to Congress on factfinding.

3:16 Jay Goodman Tamboli: Specter says Alito and Roberts said they’d defer, but then they handed down Citizens United.

3:16 Jay Goodman Tamboli: Specter again asks if there’s any way she can look at Citizens United as anything other than a “jolt to the system.”

3:17 Jay Goodman Tamboli: Kagan says she took a strong position as an advocate. Specter interrupts, saying she’s already said that. Says he wants to know her opinion as a potential judge.

3:17 Jay Goodman Tamboli: Raising her voice, Kagan says “It’s a little different to take off the advocate’s hat and put on the judge’s hat.”

3:18 Jay Goodman Tamboli: Difficult, not different. Sorry.

3:19 Jay Goodman Tamboli: Specter asks what they should do when nominees veer way from flat commitments made in the confirmation hearings.

3:19 Jay Goodman Tamboli: Reading a quote from a Posner book talking about Roberts acting differently from what he said he would do.

3:20 Jay Goodman Tamboli: Richard Posner

3:20 Jay Goodman Tamboli: Specter asks Kagan if she wants to comment on that. Kagan says she assumes the good faith of everyone who sits in that chair.

3:21 Jay Goodman Tamboli: Specter moves on to cameras in the courtroom.

3:23 Jay Goodman Tamboli: Really making a speech about cameras…

3:24 Jay Goodman Tamboli: Kagan says she’d talk with the other Justices about cameras.

3:26 Jay Goodman Tamboli: Kagan jokes that she’d have to get her hair done more often.

3:26 Jay Goodman Tamboli: Specter praises Kagan for her sense of humor.

3:28 Jay Goodman Tamboli: Specter is asking about the shrinking size of the Supreme Court’s docket.

3:28 Jay Goodman Tamboli: Giving statistics about the number of cases heard each year.

3:29 Jay Goodman Tamboli: Specter notes there is a circuit split on the Foreign Intelligence Surveillance Act.

3:32 Jay Goodman Tamboli: Kagan says the constitutionality of the Terrorist Surveillance Program is an important question, but there is still the question of standing: how can someone prove they’ve been injured?

3:33 Jay Goodman Tamboli: Specter says the 6th Circuit decided jurisdiction after it heard the case.

3:33 Jay Goodman Tamboli: But Specter closes.

3:33 Jay Goodman Tamboli: Senator Graham is up, then Senator Schumer, then a break.

3:33 Jay Goodman Tamboli: Kagan says, “That’s good.”

3:34 Jay Goodman Tamboli: Graham asks if the hearings were about what they thought they would be. Kagan says she’s not sure.

3:35 Jay Goodman Tamboli: Graham asks if, going back in time, she would have approved. Kagan jokes the committee has been exercising its constitutional duties quite well.

3:35 Jay Goodman Tamboli: Graham quotes Greg Craig as saying Kagan was “largely a progressive in the mold of Obama himself.” Asks if she agrees.

3:36 Jay Goodman Tamboli: “Elections have consequences; do you agree with that?”
“It would be hard to disagree that elections have consequences.”

3:37 Jay Goodman Tamboli: Graham asking how Kagan knows Miguel Estrada.

3:37 Jay Goodman Tamboli: Kagan says she’s been a Democrat all her life. Graham asks if she considers her views “progressive.”

3:37 Jay Goodman Tamboli: Kagan says sure.

3:37 Jay Goodman Tamboli: Kagan says they were classmates, and the two of them were required to sit next to him in all her first year classes at Harvard. She jokes that he takes great notes, and she could look over at his notes if she missed something.

3:38 Jay Goodman Tamboli: Graham is reading a portion of Miguel Estrada’s letter in support of Kagan’s confirmation.

3:39 Jay Goodman Tamboli: Graham asks what Kagan thought of the letter. “Deeply touched, deeply grateful,” she said.

3:39 Jay Goodman Tamboli: Graham laments Estrada’s failed nomination, but says that’s the past.

3:40 Jay Goodman Tamboli: In response to Graham’s question, Kagan says Estrada is qualified to sit as an appellate judge and qualified to sit on the Supreme Court. Graham asks if Kagan could write him a letter in support of Estrada.

3:40 Jay Goodman Tamboli: Kagan agrees.

3:41 Jay Goodman Tamboli: Graham asks if Kagan remembers telling him we are at war during her SG confirmation.

3:41 Jay Goodman Tamboli: At war with whom, he asks.

3:41 Jay Goodman Tamboli: Kagan says “we are at war with al-Qaida and the Taliban.”

3:42 Jay Goodman Tamboli: Graham asks if the law of armed conflict allows detention of someone as long as the person is dangerous. Kagan says that it’s OK to hold someone until hostilities are over with the idea that it prevents them from picking up arms again.

3:42 Jay Goodman Tamboli: Graham points out that that’s the problem: this war doesn’t have a clear endpoint. Kagan agrees.

3:43 Jay Goodman Tamboli: Graham asks if it would be helpful for Congress to work with the Executive to come to an agreement. Kagan says that under Youngstown the President has more power when he works with Congress.

3:43 Jay Goodman Tamboli: Graham asks whether, as Solicitor General, it would be helpful for them to work together.

3:44 Jay Goodman Tamboli: Kagan says she’s hesitant to speak as SG on legal policy, but she can say that courts owe the most deference when the president works with Congress.

3:45 Jay Goodman Tamboli: Graham asking about detainees at Guantanamo Bay.

3:45 Jay Goodman Tamboli: He says they’re too dangerous to let go, but they’re not being criminally prosecuted. Asks Kagan whether she thinks that’s OK.

3:45 Jay Goodman Tamboli: Kagan says as SG she has argued for that position.

3:46 Jay Goodman Tamboli: Graham points out she argued against extending habeas rights to detainees at Bagram.

3:47 Jay Goodman Tamboli: She says she did, and she won. Graham points out she’ll have to recuse herself from that case if it comes before the Supreme Court, and therefore she can talk about it.

3:47 Jay Goodman Tamboli: Kagan says she signed that brief and didn’t argue it, but she’ll still recuse herself.

3:48 Jay Goodman Tamboli: Graham asks if she convinced herself that it would be a disaster for the federal government if the detainees were ordered to release the detainees.

3:48 Jay Goodman Tamboli: Kagan stalls a bit…

3:49 Jay Goodman Tamboli: Kagan says the statements in the brief are her best understanding of the interests of the United States.

3:49 Jay Goodman Tamboli: Kagan says anything in the brief she stands by as the best position for the interests of the United States.

3:51 Jay Goodman Tamboli: This is a tough line for Kagan. If she rules differently as a Supreme Court Justice, she now has to admit that either she lied today or she later is ruling against the best interest of the United States Government. Of course, by then she’ll have life tenure…

3:52 Jay Goodman Tamboli: Graham starts asking about the Christmas Day bomber. “Where are you at on Christmas Day?”

3:52 Jay Goodman Tamboli: Kagan starts by saying that’s an unsettled legal issue… Graham interrupts and asks where she was.

3:52 Jay Goodman Tamboli: Kagan says that, like all other Jews, she was probably in a Chinese restaurant.

3:53 Jay Goodman Tamboli: Kagan says she doesn’t know more than what was in the newspapers about the Christmas Day bombing.

3:54 Jay Goodman Tamboli: “Tell me about Miranda warnings,” Graham says.

3:54 Jay Goodman Tamboli: Kagan says Miranda warnings are only relevant for admissibility of evidence in a criminal proceeding, so if we’re talking about a battlefield capture and not a criminal trial, Miranda doesn’t come up.

3:55 Jay Goodman Tamboli: Kagan corrects that admissibility in military commissions has yet to be decided.

3:56 Jay Goodman Tamboli: Graham asks whether she thinks reading Miranda warning to people arrested inside the US would hinder collection of intelligence.

3:56 Jay Goodman Tamboli: Kagan says she’s a member of the administration, so she’d rather not respond.

3:57 Jay Goodman Tamboli: Graham asks about the “public safety” exception to Miranda. Kagan notes it’s limited. “Very limited,” Graham says.

3:58 Victoria Jones: Tough to ask her about being a patriotic American, if Kagan doesn’t agree with him, then she isn’t one…

3:58 Jay Goodman Tamboli: Graham asks whether we’d be safer if it were possible to hold a terrorist suspect and gather intelligence to find out about possible future attacks.

3:59 Jay Goodman Tamboli: Kagan says she might think about it differently as a judge.

4:01 Victoria Jones: Graham says “Back home it wouldn’t hurt that the Harvard law school dean was made at Lindsey” - joking

4:01 Victoria Jones: sorry - mad

4:01 Jay Goodman Tamboli: Graham asks what Kagan said in a letter to him about the proposal about detainees. Graham suggests she said it would turn us into a dictatorship. Kagan said she didn’t quite say that. Graham jokes that it’s ok; jokes that that might help him back home.

4:02 Jay Goodman Tamboli: Kagan says they criticized the initial proposal.

4:03 Jay Goodman Tamboli: Graham asks if she has confidence in the military commissions. Kagan says she hasn’t had any exposure to commissions. She praises military lawyers, however.

4:04 Victoria Jones: Graham wants to know if a military tribunal is within our values system.

4:04 Jay Goodman Tamboli: Schumer is up.

4:04 Victoria Jones: Kagan says it is.

4:04 Jay Goodman Tamboli: Lots of press leaving. I guess they think they know what Schumer’s going to say.

4:05 Jay Goodman Tamboli: Yet another handout about military recruiting at Harvard…

4:05 Victoria Jones: Schumer is wearing a grey jacket, blue shirt and gold/rust tie. Not a combination I would have picked for him.

4:06 Victoria Jones: Schumer asks Kagan to speak about judicial modesty.

4:08 Victoria Jones: It’s 4 pm. The press may also be going for a cup of tea.

4:10 Victoria Jones: Kagan says her personal views would not play a role.

4:11 Jay Goodman Tamboli: Kagan’s answer on judicial decisionmaking is completely textbook. Look at the text, Congressional intent, etc.

4:11 Victoria Jones: Schumer asking about judicial activism.

4:12 Victoria Jones: Kagan says activism does not have a party.

4:14 Jay Goodman Tamboli: On her work unifying the faculty at Harvard Law, Kagan says it’s important to listen.

4:16 Jay Goodman Tamboli: Schumer asks what one does when the law leads to a conclusion that doesn’t make any sense in the real world?

4:17 Jay Goodman Tamboli: Kagan says the text is the best evidence of Congress’s intent, and judges should follow that.

4:20 Jay Goodman Tamboli: Schumer turns to Citizens United.

4:21 Jay Goodman Tamboli: Schumer asks if she agrees that no amendment is absolute. Kagan says the First Amendment is not believed to be absolute.

4:22 Victoria Jones: Kagan has some interesting writings on pornography, and seems to see little protection for it under the Constitution.

4:23 Victoria Jones: She argued the case for the government against crush videos.

4:24 Victoria Jones: She lost.

4:24 Jay Goodman Tamboli: Schumer asks about whether Citizens United is consistent with some other rulings.

4:24 Jay Goodman Tamboli: Kagan says that the Court disagreed with her argument.

4:28 Victoria Jones: Schumer throwing softballs so Kagan can distance herself from her seeming glowing endorsement of Israeli Judge Barak.

4:29 Jay Goodman Tamboli: Schumer asks about foreign law. Kagan says it can be used to define terms used in foreign relations.

4:29 : Has anyone asked if Kagan believes in corporate person-hood?

4:29 Victoria Jones: Kagan gently distances herself.

4:29 Jay Goodman Tamboli: Greg: I don’t think anyone’s asked that, but it’s a good question.

4:31 Victoria Jones: Kagan says law graduates need an understanding of international law or US will be at a competitive disadvantage

4:31 Jay Goodman Tamboli: Schumer gives some examples of Chief Justice Roberts citing law review articles and other non-judicial sources.

4:31 Jay Goodman Tamboli: Schumer often points out Justice Scalia often cites dictionaries.

4:32 Jay Goodman Tamboli: Leahy asks Kagan how she’s doing. Says he’s enjoying some of the ethnic humor here.

4:33 Jay Goodman Tamboli: 10-minute recess. Out to the stakeout.

4:33 Victoria Jones: Mad dash to the bathrooms.

4:44 Jay Goodman Tamboli: No one at the stakeout, oddly.

5:01 Jay Goodman Tamboli: We’re back. Leahy is joking that he doesn’t stop the photographers because it’s the one job he envies.

5:01 Jay Goodman Tamboli: Cornyn is up. Asking about Miguel Estrada.

5:02 Jay Goodman Tamboli: Cornyn asks if she did anything to help Estrada when his nomination was held up. Kagan says he never asked.

5:05 Jay Goodman Tamboli: Cornyn is talking about activism. He asks Kagan about changing the Constitution via the courts, saying Kagan gave Brown v. Board as an example of changing the Constitution. Cornyn says he and some other scholars believe Brown restored the original meaning of the 14th Amendment.

5:06 Jay Goodman Tamboli: Kagan says she thinks she said that Brown interpreted the Constitution in a different way, not changed the Constitution.

5:07 Jay Goodman Tamboli: Kagan says she thinks the writers of the 14th Amendment didn’t mean to constitutionalize all the values of 1868, but instead meant to write down the principle of equality to be applied.

5:08 Jay Goodman Tamboli: Cornyn asks whether Kagan thinks the courts change the Constitution or whether she believes the Constitution can only be changed by amendment or constitutional convention.

5:08 Jay Goodman Tamboli: Kagan says she thinks the Constitution was meant to be applied to new conditions and circumstances.

5:08 Jay Goodman Tamboli: Cornyn: “Do you believe in the idea of a living constitution?”

5:09 Jay Goodman Tamboli: Kagan says she doesn’t like the term. Says it’s associated with a “loosy goosy” style of interpretation.

5:09 Jay Goodman Tamboli: Rather, she says, the Court’s job interpreting is highly constrained by text and precedent.

5:10 Jay Goodman Tamboli: Kagan says the Constitution does not change unless by amendment, but it is applied to new situations, new facts, new circumstances.

5:11 Jay Goodman Tamboli: Cornyn asks whether she believes honoring the Constitution means respecting the only way of changing it, through amendment.

5:11 Jay Goodman Tamboli: I’m getting the impression Cornyn had these questions lined up expecting her to answer differently.

5:11 Jay Goodman Tamboli: “I can’t disagree with what you just said,” Cornyn says. Sounds regretful.

5:14 Jay Goodman Tamboli: Cornyn says many people think the federal government is “out of control.” He asks Kagan whether she thinks recent decisions have reduced the role of the Supreme Court in checking the size of the government.

5:15 Jay Goodman Tamboli: To the contrary, Kagan says she thinks recent decisions have limited the federal government. She gives the example of Gibbons v. Ogden from 1824, where the Court gave the government expansive powers.

5:16 Jay Goodman Tamboli: Cornyn says she should take the health care mandate as an example.

5:16 Jay Goodman Tamboli: Cornyn calls the mandate an “unprecedented reach” under the Commerce Clause.

5:17 Jay Goodman Tamboli: Invokes the 10th Amendment.

5:17 Jay Goodman Tamboli: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

5:18 Jay Goodman Tamboli: Kagan says there are some limits, citing Lopez and Morrison cases, where activity was not economic and was the kind of thing normally regulated by states.

5:19 Jay Goodman Tamboli: Cornyn asks if she agrees that if the Courts don’t limit Congress, there are only two options: Constitutional amendment or Constitutional convention.

5:19 Jay Goodman Tamboli: (Of course these people who are supposedly up in arms could just vote for different legislators…)

5:20 Jay Goodman Tamboli: (Unless they live in DC, of course. No representation here.)

5:20 Jay Goodman Tamboli: Kagan says an amendment to the Constitution would be appropriate.

5:23 Jay Goodman Tamboli: Kagan says that the function of precedent means that the Supreme Court decisions bind future courts, while Congress can repeal any law passed by a previous Congress.

5:23 Jay Goodman Tamboli: “Let me talk a little bit more about guns,” Cornyn says.

5:24 Jay Goodman Tamboli: Cornyn asks her whether it’s true the McDonald and Heller decisions left standing some gun regulations, like concealed-carry bans or bans on ownership by felons.

5:25 Jay Goodman Tamboli: Kagan says she hasn’t read McDonald, but in Heller the Court set those to the side and left them standing.

5:27 Jay Goodman Tamboli: Cornyn reads Sotomayor quote from her confirmation, where she said she understood the individual right recognized in Heller, but on Monday she dissented in McDonald.

5:28 Jay Goodman Tamboli: Of course, Cornyn is reading quotes from Breyer’s dissent in Monday’s case. Sotomayor signed on to it, but she didn’t write it.

5:30 Jay Goodman Tamboli: Cornyn asks if she agrees with Heller and McDonald. Kagan says those cases are settled law and deserving of stare decisis deference.

5:32 Jay Goodman Tamboli: Durbin (D-IL)’s turn

5:35 Jay Goodman Tamboli: Durbin is talking about sentencing and the number of people the US has in prison.

5:35 Jay Goodman Tamboli: He’s talking about the crack/cocaine sentencing discrepancy

5:37 Jay Goodman Tamboli: Durbin asks why a 10:1 ratio is OK.

5:39 Jay Goodman Tamboli: Kagan says some people want it to go to 1:1, but it’s really a question for Congress.

5:39 Jay Goodman Tamboli: As a judge, Kagan says the only thing she thinks would matter is the statute.

5:41 Jay Goodman Tamboli: Durbin moves on to the death penalty.

5:43 Jay Goodman Tamboli: Asks her for her position on the death penalty.

5:44 Jay Goodman Tamboli: Kagan says the constitutionality of the death penalty is established law and entitled to precedential weight.

5:44 Jay Goodman Tamboli: Kagan says she does not have moral qualms about the death penalty and could apply the law as it is written.

5:45 Jay Goodman Tamboli: Durbin asks about Justices who have changed their minds about the death penalty, asking what Kagan thinks changed their minds.

5:45 Jay Goodman Tamboli: Kagan says she doesn’t know.

5:46 Jay Goodman Tamboli: Durbin asks if she can remember conversations with Justice Marshall about the death penalty.

5:47 Jay Goodman Tamboli: She says Justice Marshall thought they had a special duty to make sure any special factors in death penalty cases were brought to the attention of the other Justices.

5:47 Jay Goodman Tamboli: Durbin asks if her position would be different from that of Justice Marshall. She says it would, since she thinks the constitutionality of the death penalty is settled precedent.

5:47 Jay Goodman Tamboli: Executive power.

5:49 Jay Goodman Tamboli: Durbin asks about our treaty obligations that might be violated by indefinite detentions of combatants.

5:49 Jay Goodman Tamboli: He asks if her statements on Obama administration policy are her personal opinions and if that’s how she’d rule.

5:50 Jay Goodman Tamboli: Kagan says she might rule differently as a Justice.

5:54 Jay Goodman Tamboli: Durbin says there’s something missing in the discussion of activism.

5:55 Jay Goodman Tamboli: He says the notion of mechanical judges isn’t practical. Durbin disputes Cornyn’s argument that Brown v. Board was “hidden” in the 14th Amendment.

5:56 Jay Goodman Tamboli: Kagan says judges are always constrained by law and can only look to legal sources.

5:56 Jay Goodman Tamboli: But, she says, there are hard legal cases.

5:59 Jay Goodman Tamboli: Durbin asks about the discovery of a constitutional right to “privacy” in Griswold v. Connecticut.

5:59 Jay Goodman Tamboli: Kagan says the 14th Amendment’s guarantee of liberty includes some substantive guarantees.

6:00 Jay Goodman Tamboli: For example, she says, in Griswold the Court said a couple’s decision to use contraceptives is up to the couple.

6:03 Jay Goodman Tamboli: Coburn’s up. He asks Leahy if he’s last for the day, but Leahy says, “Let’s see how we go.”

6:03 Jay Goodman Tamboli: Coburn praises Feingold for standing up for his positions.

6:05 Jay Goodman Tamboli: Coburn tells Kagan she’s a liberal, she believes in a woman’s right to choose, she believes in gay marriage, etc. Kagan interrupts to say that her personal beliefs aren’t necessarily the way she would vote if a legislator.

6:07 Jay Goodman Tamboli: Kagan disputes that as SG she advocated the use of foreign law. Kagan says she made comments appealing to certain Justices who do approve of foreign law. Coburn holds up a big sign with a quote on it.

6:08 Jay Goodman Tamboli: Kagan says her job was to present the best argument. If foreign law arguments would help the government’s case, she would use it, she says.

6:08 Jay Goodman Tamboli: Coburn reads the Constitution.

6:09 Jay Goodman Tamboli: Coburn holds up a book (can’t see what it is).

6:09 Jay Goodman Tamboli: Coburn asks why it’s OK to use foreign law.

6:10 Jay Goodman Tamboli: Kagan says foreign law is not appropriate to use as precedent or an independent basis of support on the vast majority of legal questions.

6:10 Jay Goodman Tamboli: But, Kagan says, there might be questions that reference international considerations. Even there, she says, they might be relevant but not have binding weight.

6:11 Jay Goodman Tamboli: Kagan (probably getting tired) accidentally refers to Coburn as “Justice– Senator Coburn.”

6:11 Jay Goodman Tamboli: Coburn asks: Is the precedent more important than original intent?

6:12 Jay Goodman Tamboli: Kagan says that in the First Amendment context, the doctrine departs significantly from the original intent.

6:12 Jay Goodman Tamboli: For example, she doesn’t think the framers would have ever thought the First Amendment would protect anyone against libel suits. But the Supreme Court in New York Times v. Sullivan held that it provided some protection.

6:13 Jay Goodman Tamboli: Why wouldn’t they understand that?, Coburn asks. “They had print back then,” Coburn says.

6:13 Jay Goodman Tamboli: Kagan says the principles of the First Amendment couldn’t be protected unless the decision in New York Times v. Sullivan came that way.

6:13 Jay Goodman Tamboli: Who can change precedent?, Coburn asks.

6:13 Jay Goodman Tamboli: Kagan says the Court can, but it’s a very high bar.

6:14 Jay Goodman Tamboli: Coburn asks her to explain. Kagan says it has to be an unusual circumstance, such as when the precedent has become unworkable or produces inconsistent results.

6:14 Jay Goodman Tamboli: Coburn asks her to explain Brown v. Board.

6:14 Jay Goodman Tamboli: Coburn asks, was it to change precedent or was it to go back to original intent?

6:17 Jay Goodman Tamboli: Kagan says that, like Roberts said, you have to approach constitutional interpretation pragmatically. Not with a single overarching philosophy.

6:17 Jay Goodman Tamboli: Coburn asks how she’s going to take off her advocate’s hat as she becomes a Justice of the Supreme Court.

6:19 Jay Goodman Tamboli: Kagan says that of her 25-year legal career, 4 were spent in the Clinton White House.

6:19 Jay Goodman Tamboli: Coburn had asked her about her “political hat.”

6:20 Jay Goodman Tamboli: Coburn asks what she says to people who worry that her political positions would have an effect on her judicial decisions.

6:20 Jay Goodman Tamboli: Kagan says she hopes people come away from this hearing with that view.

6:22 Jay Goodman Tamboli: Coburn observes that it really doesn’t matter what Kagan says, since once she’s on the Court there’s nothing they can do about her decisions.

6:23 Jay Goodman Tamboli: Coburn asks if it would violate the Commerce Clause for Congress to mandate everyone eat a certain amount of vegetables each day.

6:25 Jay Goodman Tamboli: Coburn reads from the Federalist Papers. Asks Kagan if she’s read it; she says she has.

6:25 Jay Goodman Tamboli: (I wonder how Coburn would respond if Kagan asked if she could cite it in decisions.)

6:26 Jay Goodman Tamboli: 3 fruits and 3 vegetables is the question.

6:27 Jay Goodman Tamboli: Kagan first notes that it is the Court’s job to make sure Congress is only acting within its Constitutional powers.

6:27 Jay Goodman Tamboli: Kagan says the Commerce Clause has been interpreted broadly, including anything that would affect interstate commerce. But not non-economic activities, she says.

6:27 Jay Goodman Tamboli: And that’s the question the court would ask, she says.

6:28 Jay Goodman Tamboli: But, she says, the principal protector against bad laws it the political branches themselves.

6:30 Jay Goodman Tamboli: Coburn ranting about the size of the federal government…

6:32 Jay Goodman Tamboli: Kagan says the $1.6 trillion deficit may be a problem, but it’s not a problem for the courts to solve.

6:33 Jay Goodman Tamboli: Coburn says we’re here because the courts didn’t restrict the government.

6:33 Jay Goodman Tamboli: Pushing ahead to Cardin (D-MD)

6:34 Jay Goodman Tamboli: Leahy refuses to say how much longer we’ll go.

6:35 Jay Goodman Tamboli: Carding is talking about segregated facilities that he remembers and that Thurgood Marshall helped end.

6:36 Jay Goodman Tamboli: Cardin says Coburn’s definition of original intent reminds him of some of his colleagues’ definition of activism. Cardin says he wants a Justice who will follow precedent, protect individuals.

6:38 Jay Goodman Tamboli: Cardin quotes Roberts as saying the framers intended the law to be applied to new situations.

6:38 Jay Goodman Tamboli: If even the Senators admit Kagan sounds just like Roberts did, why do they bother with the hearings?

6:40 Jay Goodman Tamboli: Cardin asks how she thinks the framers intended the Constitution to protect individuals against corporate interests.

6:42 Jay Goodman Tamboli: Kagan praises Constitution, says it protects against deprivation of equal protection and of liberty.

6:44 Jay Goodman Tamboli: C-SPAN 3 showing empty hearing room. Coburn and Sessions only Rs here. Leahy, Cardin, Whitehouse, and Franker here on the D side.

6:45 Jay Goodman Tamboli: Cardin asks if she would give due deference to Congress in expanding civil rights protections.

6:47 Jay Goodman Tamboli: Kagan says Court has ruled that Congress can remedy and enforce 14th Amendment, but it can’t change meaning of 14th.

6:49 Jay Goodman Tamboli: Carding talking about vote problems: not enough voting machines in minority districts, disinformation spread about voting on Wednesday in some districts, etc.

6:49 Jay Goodman Tamboli: Cardin moves to Citizens United.

6:51 Jay Goodman Tamboli: “I know this is a case that’s already been decided,… but I just want to weigh in,” Cardin says.

6:52 Jay Goodman Tamboli: Cardin asks if she’ll defer to Congress on enacting legislation protecting the environment.

6:52 Jay Goodman Tamboli: Kagan says she would construe laws according to Congressional intent.

6:54 Jay Goodman Tamboli: Also talking about discrimination statutes, where Kagan again says she’d enforce the text of the statute.

6:55 Jay Goodman Tamboli: Cardin brings up sexual-orientation discrimination.

6:57 Jay Goodman Tamboli: Cardin says he has a bill, but he expects a legal challenge. Asks Kagan if she’ll defer to Congress.

6:57 Jay Goodman Tamboli: Kagan says she’ll defer to Congress on the policy decision. If there’s a statutory question, she’ll look at what Congress intended.

6:57 Jay Goodman Tamboli: Cardin asks about pro bono work.

6:58 Jay Goodman Tamboli: (Notably, Cardin’s state, Maryland, does not have a pro bono requirement for attorneys.)

7:00 Jay Goodman Tamboli: Kagan says this is something she focused on this at Harvard. The need is great, she says.

7:01 Jay Goodman Tamboli: Kagan talking about her efforts to expand pro bono requirements at Harvard Law.

7:03 Jay Goodman Tamboli: Cardin asks if there’s anything a Justice could do to improve the pro bono situation.

7:03 Jay Goodman Tamboli: Kagan says she’d want to talk to her colleagues about it, but “there’s got to be a role for Supreme Court Justices” due to their visibility, etc.

7:04 Jay Goodman Tamboli: Cardin is finished…

7:05 Jay Goodman Tamboli: Leahy announced we’re ending for today. Will resume at 9 tomorrow.

7:05 Jay Goodman Tamboli: Thanks for watching. I’ll be liveblogging again tomorrow morning at http://www.talkradionews.com/.

Senators Press For Repeal Of Key Anti-Trust Exemption Provision

Travis Martinez - University of New Mexico/Talk Radio News Service

The Senate Judiciary Committee held hearings on repealing the anti-trust exemption provision set by the McCarran-Ferguson Anti-Trust Act in 1945. The committee heard testimony on Wednesday from Senate Majority Leader Harry Reid (D-Nev.) and the Assistant Attorney General for Antitrust Christine Varney.

Senator Reid argued that the provision be passed in the Senate's health care reform bill, and urged Congress to act swiftly on the matter.

“I urge all my colleagues on this committee and all throughout the senate to get this bill out of committee as quickly as possible. The bill that came out of the Finance Committee...chips away at the monopoly they [health insurance companies] have,” said Reid.

“They are so anti-competitive. Why? Because they make more money than any other business in America today,” he added.


Senator Chuck Schumer (D-N.Y.), a member of the Finance Committee, had harsh words for past anti-trust legislation. He vowed to bring an amendment to the floor that will repeal the anti-trust exemption when the Senate bill reaches the floor.

“The health insurance’s antitrust exemption is one of the worst accidents of American history... It deserves a lot of the blame for the huge rise in premiums that has made health insurance so unaffordable. It is time to end this special status and bring true competition to the health insurance industry," Schumer said.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) sounded optimistic that the bill will have support from both sides of the aisle.

“This is a bipartisan, no this is a non-partisan thing, everyone should be subjected to the laws. If you obey the law and follow the law... you’ve got nothing to fear,” said Leahy.

Senate Judiciary Committee To Reauthorize Patriot Act, Add Limits

By Meagan Wiseley, University of New Mexico-Talk Radio News Service

Three provisions of the USA Patriot Act are set to expire Dec. 31, 2009 and Senate Judiciary Committee Chairman, Patrick Leahy (D-Vt.), intends to reauthorize the expiring provisions, but with sunset provisions to ensure the protection of Americans' civil liberties.

According to a statement from Sen. Leahy the USA Patriot Act Sunset Extension Act mandates new audits by the Department of Justice Office of Inspector General on the use of National Security Letters, or federal subpoenas used by a variety of law enforcement entities.

Inspector General of the U.S. Department of Justice, Glenn Fine, said, “our reports ... found the FBI had engaged in serious misuse of NSLs... we found that the FBI had issued many NSLs without proper authorization and had made improper requests under the statutes cited in the NSLs.”

The Office of the Inspector General is still reluctant to conclude that the FBI has fully eliminated all the problems that were found. Fine suggested that while congress is considering reauthorizing provisions of the Patriot Act “it must ensure through continual and aggressive oversight that the FBI uses these important and and intrusive investigative authorities appropriately.”

Leahy believes that comprehensive audits performed by Congress will help hold the FBI accountable for the organization's NSL use.

Grammy Winning Artist Becomes Emotional Over Performance Rights Act

By Aaron Richardson - Talk Radio News Service

Grammy Award winning artist Sheila E. tearfully testified before the Senate Judiciary committee on the importance of passing the proposed Performance Rights Act, legislation that would require broadcast radio stations to directly pay the musicians they feature.

“I get emotional because I see what music does for...kids. Music is my life and it is not fair what is happening,” said Sheila E.

Broadcast radio stations have not had to pay artists directly for the use of their music. While radio stations have aided artists in other ways, such as generating album sales through airplay, the popularity of satellite and internet radio, which pays artists, has left many artists requesting more.

According to Steve Newberry, who testified on behalf of the National Association of Broadcasters, paying artists for the use of their music is not as easy as it seems.

“I believe that this proposed legislation will likely end local radio broadcasting as you have known it. I have never seen the economic pain that radio stations are experiencing,” said Newberry.

“The United States is the only industrialized nation that does not provide performers a full performance right. I’ll say that again, the United States is the only industrialized nation that does not provide performers a full performance right.” said Senator Dianne Feinstein (D-Calif.).

According to a Nielson SoundScan report, overall album sales in the U.S. peeked at 1.5 billion in 2008. The recording industry receives roughly $15 billion in revenue a year.

Sotomayor Backed By Civil Rights Organizations

By Courtney Ann Jackson-Talk Radio News Service

Civil rights organizations voiced their support of Supreme Court nominee Judge Sonia Sotomayor just one day after the Senate Judiciary Committee voted 13-6 to confirm her nomination.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Majority Leader Harry Reid (D-Nev.) joined representatives of various organizations in a press conference Wednesday to discuss the historic nomination and upcoming Senate vote.

Leadership Conference on Civil Rights President Wade Henderson said, “Her elevation to the Supreme Court would mark another advance on the road to equal opportunity that this nation has traveled from its founding; but, even more importantly, it would give Americans a Justice they can be confident will uphold their constitutional values, the rule of law and the principle of equal justice for all.”

Lillian Rodriguez Lopez of the National Hispanic Leadership Agenda spoke about Sotomayor from both a professional and a personal perspective. Lopez fought back tears as she explained that while she, too, is a Hispanic woman from New York, she could only “pray to possess” the qualities and skills that Sotomayor possesses.

“I hope that next week that the members of the entire Senate will send a message of resounding support for Judge Sotomayor to the American people, to the Hispanic American people, when they vote for her confirmation,” said Lopez.

Reid said he is currently trying to cut a deal with Minority Leader Sen. Mitch McConnell (R-Ky.) regarding the floor debate, but isn't certain on how long the debate may last. He dismissed Republicans' concerns over Sotomayor, asking rhetorically, “How many times do we have to listen to the same speeches on the same brief statements she made, on the same case that she talked about?”

Reid added that the Senate will be working long hours to ensure that the confirmation vote is one of the last things they do before they leave for the August recess.