Kagan Holds Middle Ground as Democrats and Republicans Attack Current Court

Compressed due to this week’s memorial services for the late Sen. Robert Byrd (D-West Virginia), but not condensed, the confirmation hearings for Supreme Court nominee Solicitor General Elena Kagan plunged into their third day, alternately punctuated by tense questioning and smoothed by languid exchanges about legal theory – as well as fashion and the top pop song of the 1980s (“Call Me” by Blondie).

Several discussions rehashed what had been covered over the past few days: whether or not Harvard Law School denied the military appropriate access to students, the Citizens United v. Federal Election Commission decision that allows corporate and union donations to flow into elections, and laws of commerce, particularly with respect to healthcare reform and the requirement that all citizens have coverage.

Democrats emphasized the importance of precedent, using it to criticize the current court. Sens. Sheldon Whitehouse (D-Rhode Island) and Al Franken (D-Minnesota) attacked rulings by the Roberts bench as both irreverent and irregular. Whitehouse called the Supreme Court’s Citizens ruling an overreach because the court participated in “fact-finding,” a task he said was the responsibility of lower courts. Franken followed Whitehouse’s thread, saying the court answered a question that wasn’t asked in Citizens United. Franken also said the Supreme Court overlooked explicit employee protections in Rent-A-Center v. Jackson, in which, Franken said, an employee was denied the right to try his case in court.

Sen. Lindsey Graham (R-South Carolina) crab-walked his way towards his true query, but, like Whitehouse and Franken, chose the importance of precedent as his starting point. Graham began, using the evolution of law from Plessy v. Ferguson, which found the “separate but equal” principle constitutional, to the decision fifty years later in Brown v. the Board of Education that found that same policy unconstitutional. “Nothing changed in the Constitution word-wise, did it?” Graham asked.

Kagan said no, but that “the understanding and circumstances in the world changed.”

Graham and Kagan continued the dialogue, noting that the move from Plessy to Brown was not a sudden one, but came about because years of rulings made the 1954 Brown decision possible. The somewhat winding conversation addressed criteria Kagan said allowed the language of the law to stay the same but the reasoning to change

“One reason to reverse a decision is when its doctrinal support has been completely eroded,” she said, “and I think that is what happened in Brown.”

It was then that Graham got to his point: abortion rights. Graham said the Roe v. Wade ruling, which legalized abortion “is being changed … interpreted differently over time,” and then asked if scientific findings would be allowed to influence future rulings on abortion rights, much like an evolution of understanding enabled the court to strike down “separate but equal” in 1954. Kagan responded that “in every area it is fair to consider scientific changes” and proceeded to draw an analogy between the court’s ability to allow rights to keep pace with technology – such as guarding citizens’ privacy from intrusive technology – with the ability of the court to adapt laws to apply to social and technological changes.

Sens. Jon Kyl (R-Arizona) and Tom Coburn (R-Oklahoma) adopted a prickly tone in their questioning.

While asking about the rights of enemy combatants, Kyl repeatedly cut off the Supreme Court nominee mid-answer, firing off another question. After changing the topic to same-sex marriage, Kyl maintained a tight tempo, allowing the nominee little time to answer as he alternated between asserting that the court had not yet chosen to decide same-sex marriages were protected by the Constitution and asking Kagan if the Constitution could be “properly read” to grant such a right. Kagan’s response was one of deference to Congress, saying she “accepts the state of the law.”

For Coburn, what he saw as the court’s failure to strictly adhere to the Constitution was weakening the country and making citizens less free. “Our institutions are failing,” he said, adding that government – in renegotiating mortgages and requiring citizens purchase healthcare coverage – has expanded its reach and hemmed in citizens. Coburn tried to get Kagan, who had dodged requests for her opinion throughout the hearing, to commit to a point of view.

On gun rights, he asked Kagan, “Is there a fundamental pre-existing right to have arms to defend yourself?” Kagan’s answer – “I very much appreciate how deeply important the right to bear arms is to . . Americans” – did not satisfy the senator. Coburn pressed, “Do you, Elena Kagan personally believe there is a fundamental right?” Kagan’s response: “I think the question of what I believe as to what people’s rights are – that you should not want me to act in any way on the basis of such a belief. I think you should want me to act on the basis of law.”

Republicans were not the only ones rebuffed in such a manner. To Franken’s’ critique of the Citizens United case, a suit in which Kagan, as solicitor general, had lost, said that although her position as solicitor general forced to her take a side, from the perspective of a judge, “there are certainly strong arguments on the other side as well.”

The hearings continue tomorrow morning.