Third day of Kagan confirmation hearings

The Senate Judiciary Committee held its third day of confirmation hearings for Supreme Court nominee Elena Kagan.  If confirmed, Kagan would replace retiring Justice John Paul Stevens. FSRN’s Nathan Moore reports:

TRANSCRIPT:

Tuesday marked Justice John Paul Stevens' last official day on the U.S. Supreme Court, ending a tenure that began in 1975. Wednesday's confirmation hearings for his potential successor began with four junior Democrats fighting back against the Republicans' playing to the political right wing.

Minnesota Senator Al Franken discussed the recent Citizens United case that struck down regulations on corporate campaign spending. He quoted Justice Stevens' dissent in that case:

FRANKEN: General Kagan, this is one of the last things that Justice Stevens said in his dissent: "at bottom, the court's opinion is a rejection to the common sense of the American people who have recognized the need to prevent corporations from undermining self-government since the founding." What do you think that means, General Kagan?

KAGAN: Senator Franken, when I argued the case, I thought the strongest argument of the government was the very substantial record that Congress put together, which I think reflected the sense of the American people, that these monies from these actors spent in this form could have substantial corrupting effect on the political process. As I've indicated before, I approached this case as an advocate and not as a judge, and that there are certainly strong arguments on the other side as well. And in particular, there's the fact that political speech is the highest form of speech under the First Amendment, entitled to the greatest protection.

Lawmakers began the second round of Judiciary Committee questions, and Republican lawmakers once again prodded Kagan on issues discussed earlier. Utah Senator Orrin Hatch criticized the amount of access Kagan gave to military recruiters when she was dean of Harvard Law School. Iowa Senator Charles Grassley accused Kagan of trying to impinge on the Second Amendment  under Clinton. And Alabama Senator Jeff Sessions tried to frame Kagan as a "big government" advocate.

SESSIONS: I think the last refuge of a "big government" scoundrel is the Commerce Clause. When you have no other peg to hang your hat on, you claim it impacts commerce. You cited yesterday the Lopez and Morrison case a number of times, which seems to say that legitimate regulations defended under the Commerce Clause must- wonder of wonders- deal with economic, commercial-type matters. Have you expressed any opinions previously on Lopez and Morrison? And do you agree with those five-to-four decisions?

KAGAN: Gosh, I don't think I've expressed any views in my academic writing on Lopez and Morrison. I think that they are settled law, that they are part of the jurisprudence of the Commerce Clause going forward.

SESSIONS: Justice Sotomayor said a similar thing about the Heller case and it didn't bother her one bit being the dissent in the McDonald case on Monday.

Fifteen years ago, as a law professor, Elena Kagan criticized Supreme Court confirmation hearings as a "vapid and hollow charade." She has not repeated that assessment during her own confirmation to the High Court. But in the third day of hearings, she remained calm and cool before the Judiciary Committee without sharing many specifics about her judicial philosophy.

Congressional Quarterly reporter Seth Stern:

"In terms of style, it's the most fluid performance since Roberts. Sotomayor and Alito were a little more robotic. I think Kagan's performance very natural. She's a professor by profession, and you see that in how she speaks about law in such easy terms."

Tomorrow's confirmation hearings will include testimony by expert witnesses both for and against Kagan's nomination.  The Democrats have called witnesses including Harvard law professor Robert C. Clark, as well as Lilly Ledbetter, plaintiff in the Ledbetter vs. Goodyear Tire case.  The Republcians have called Robert Alt of the Heritage Foundation, Tony Perkins of the Family Research Council, and others.

With a large Democratic majority in the Senate, Kagan is all but assured of having her nomination to the Supreme Court confirmed later this week.

Nathan Moore, FSRN.