Elena Kagan Comes Under Heavier Fire - Day 3 Confirmation Review

It seems the job of a Supreme Court Justice nominee is to say as little as possible while their ideological opponents do all the talking for them - and, if possible, their supporters will clarify their position for them, too. As day three began for the Senate confirmation hearing for Elena Kagan, this supposition seemed accurate, despite her own 1995 law review article questioning just such a practice, as mentioned by the Washington Post.

The responses were, at times, so tepid that, according to the Post, Senator Sheldon Whitehouse (RI) invoked the confirmation of Chief Justice Roberts in Kagan's defense, suggesting Roberts had been even less forthcoming than the nominee.

What began as baseline questions from junior Democratic senators evolved into more probing questions from their Republican colleagues who, along with Senator Arlen Specter (D-PA), seemed visibly annoyed by what they viewed as her obfuscating. Despite the assault, it is still very likely she will be confirmed without a lot of fanfare.

Senators Al Franken (MN), Ted Kaufman (DE), Amy Klobuchar (MN), and Whitehouse pitched a variety of morning softballs, from her feelings regarding overturning precedent to whether the current court had too much partisan divide. She reiterated for Klobuchar that listening and understanding were the most important attributes of a good justice. She even softened her liberal credentials by referencing Justices Scalia and Roberts in a positive light.

The bonhomie ended with yesterday's toughest questioner, Senator Jeff Sessions (R-AL). He began by grilling her on her decisions as Secretary General regarding DADT, decisions Kagan seemed comfortable defending, as suggested on the SCOTUS Blog.

Later, Republican Senator Charles Grassley (IA) addressed same-sex marriage, a discussion Kagan refused to debate due to the subject being a certain case in future. He would end by expressing disappointment with her response.

She would get into a far more heated exchange with Senator Jon Kyl (R-AZ) over a letter involving Guantanamo detainees, and her opinion regarding a proposed amendment written by Kyl and friendlier questioner Senator Lindsey Graham (R-SC) - though, even here, "heat" might more appropriately be referred to as a "slow simmer." Kyl may have been offended, but Kagan simply took on a lower tone and a more cautious response, as described on the SCOTUS Blog.

If Republicans were looking for a wedge to help stall her nomination, it never seemed to appear. Republican Senators Tom Coburn (OK), John Cornyn (TX), and Orrin Hatch (UT) didn't seem to shake her much. They tried her on judicial activism; partial-birth abortion; and, Coburn's favorite, the Commerce Clause - all with little or no impact.

Of course, the question remains, after all of this back-and-forth between Kagan, the senators, and the senators arguing amongs one another - do we have a clearer picture of what kind of justice Elena Kagan will be? According to CNN, as Sessions put it, one "might find it from the testimony difficult to know, Ms. Kagan, whether you will be more like John Roberts or more like Ruth Bader Ginsburg." It seemed clear from some of her responses that this is how Kagan and, more than likely, the Obama administration would prefer things.

Controversial nominations give grist to the election mill, and with Nov. 2 only four months away, most Democrats would prefer to see a smooth ascension for the next Supreme Court Justice.

Sources:

Perry Bacon, "At Kagan confirmation hearing, the process takes some punches" The Washington Post

Erin Miller, "General Kagan Confirmation Hearings | Day 3" SCOTUS Blog

Bill Mears, "Kagan and Roberts united at confirmation hearings" CNN