Elena Kagan's confirmation hearing: Day two

June 29, 2010

Washington, D.C.: Today, Elena Kagan answered questions from the Senate Judiciary Committee members. Senators spoke in order of seniority, alternating between Democrats and Republicans. Each Senator was allowed 30 minutes to question the nominee.

Democratic Senator Leahy started the day by allowing Kagan to address issues mentioned yesterday. He questioned the Solicitor General on judicial activism, her respect for Thurgood Marshall and her statements from years ago criticizing the confirmation hearing process for Supreme Court nominees. From the answers came no surprises, and surely Senator Kyl could have interjected a quote he made later in the day, “And they said you're not political.”

The most insistent questioning of the day came next, from Senator Jeff Sessions. He focused on a decision made while Kagan was Dean of Harvard Law, which forced U.S. Army recruiters to work with the school's veterans group, as opposed to its Office of Career Services. Kagan insisted that this policy was consistent with past deans and that the recruiters still had access to students. She also pointed out that recruitment actually rose that year, as compared with the previous year. Most importantly, Kagan repeated that as Dean, it was her responsibility to protect students that would be discriminated against by the Army's “Dont Ask, Don't Tell” policy.

Sessions told Kagan that her actions created a hostile environment for the military on campus, and that the issue should have been addressed with the Congress, not the military recruiters. The Senator also asked Kagan if she was able to keep politics and her work separate, after serving two Democratic presidents. In response, Kagan said, “"I'm not quite sure how I would characterize my politics" ...but they "would be, must be, have to be ... separate from my judging.

Senator Orrin Hatch used his time to ask Kagan about the Citizens' United case, the first one she argued as Solicitor General. While he peppered her with questions, it seemed that he was more interested in sharing his viewpoint on the ruling, concluding by saying, “ I get a little tired of people misstating what Citizens United was all about”.

These two senators asked the most probing questions, but otherwise the mood could be described as light-hearted. Many parts of the proceedings were punctuated with laughter and jokes, perhaps implying that most everyone had already come to the same conclusion about the nominee. Perhaps Senator Hatch summed it up perfectly when he was interrupted by another Senator, to let Kagan answer a question that Hatch had proposed. After giving a chuckle, Hatch said, “We have to have a little back and forth every once in awhile or this place would be boring as hell.”