Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:
* Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio. I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy. Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best. And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0). There are policy differences and legal advocacy, and then there’s the rule of law.
* Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing. In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.” She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong. Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
* In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders. This line of analysis is completely wrong. It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case. So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously. Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution. I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service. Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
* Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law. This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees. She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
* At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.
The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.