This is the first in a series of blog posts reporting on the confirmation hearings for Solicitor General Elena Kagan. Check back for posts throughout the hearings!
By Lucy Panza, DC Policy Intern
Solicitor General Elena Kagan completed her testimony in the Supreme Court nomination hearings yesterday. She answered many questions with entertaining wit and humor, something not commonly seen in these types of proceedings, but without much substance on any issue that could conceivably come before the Court during her future tenure there. As The New York Times reported:
Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents. She declined to say whether terrorism suspects must be warned of the right to remain silent, saying the issue was “quite likely to get to the courts.”
The main attack narrative leveled at the nominee was that she is a lifelong political lawyer who would be unable to “take off [her] political hat,” as Senator Tom Coburn (R-OK) said at one point, to become a Supreme Court Justice. The attacks came from two angles: most of the Republican Senators reviled Kagan’s past reluctance to allow military recruiters onto the campus of Harvard Law School while she was Dean because of her objection to the Don’t Ask Don’t Tell policy; and expressed a lot of concern about Kagan’s clerkship with former Supreme Court Justice Thurgood Marshall because of Marshall’s supposedly “activist agenda.” Having answered the same question dozens of times, Kagan finally told Senator Jon Kyl (R-AZ), “I love Justice Marshall. He did an enormous amount for me, but if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall. And that’s an important thing.”
Democratic Senators helped Kagan by asking mostly softball questions that helped the nominee rebound from the Republicans’ fierce attacks. At other times, however, even Democrats asked some tough questions. Senator Diane Feinstein (D-CA), for example, pressed Kagan on the durability of Roe v. Wade and its progeny, and then about the notorious Gonzalez v. Carhart case, which upheld a federal ban on late-term abortions without an exception for the pregnant woman’s health. Kagan sidestepped her personal opinions on these important questions by pointing out that they are all “settled law” that deserve as much deference as any other legal precedent. While calling Roe a decided legal precedent is important in protecting women’s rights, saying the same about a ban on late-term abortion can be seen as quite the opposite.
Kagan also said in response to Senator Charles Grassley’s (R-IO) question about the “penumbra of privacy rights” identified in Griswold v. Connecticut that eventually led to Roe, that rights must have textual support in the Constitution and that she did not agree with the “penumbra approach.” This approach finds privacy and other rights in the Constitution by implication through other rights that are explicitly listed (such as the right not to be forced to quarter soldiers in one’s home or incriminate oneself in a criminal trial). The term “penumbra approach” refers to a ripple effect that emanates from these specifically named rights to include others, such as privacy and the right to an abortion, that are not explicitly named. Kagan rejected this approach but said that she would have found the privacy and abortion rights elsewhere – in the equal protection clause of the 14th Amendment – so that the result of these cases would be the same. Clearly, Kagan’s goal was to appeal to Senators on both sides of the political aisle on this and other political hot topics.
There were many issues that were conspicuously missing from the hearings, as Talking Points Memo (TPM) notes. One of those was immigration. No Senator mentioned Arizona Senate Bill 1070 or any other similar bills winding their way through state legislatures. Another was healthcare. Senator John Cornyn (R-TX) briefly asked a question about the constitutionality of the individual insurance purchasing mandate in the new healthcare reform legislation, but after Kagan quickly refused to answer on the basis that it was an issue coming before the Court soon, no one else brought it up.
What does this absence of questioning symbolize? Is it a tapering off of the so-called “culture wars,” as TPM suggests?
Today, outside witnesses begin giving their testimony for and against Kagan’s nomination. This is a long-standing tradition that had disappeared in recent years but has now returned. Some witnesses are invited to give a more academic account of what impact, if any, a Kagan confirmation could have on the development of American law. Others, like Lily Ledbetter, are expected to give testimony on how the law affects ordinary people’s lives everyday – a necessary reminder that the confirmation of a new Supreme Court Justice is an extremely important event that affects us all.
By Lucy Panza, DC Policy Intern