Now in Legal Rebels:
Posted Jun 29, 2010 11:03 pm CDT
Corrected: Just be yourself.
That’s what Sen. Tom Coburn, R-Okla., urged U.S. Supreme Court nominee Elena Kagan to do late Tuesday afternoon.
“First, you are dancing a bit—maybe you should be on Dancing with the Stars,” Coburn said lightheartedly as he began his questioning. “I want Americans to know who you are. I don’t know what a liberal progressive is. I know what a liberal is, and I think you’re a liberal. It’s not wrong to know what you believe in.”
Coburn proceeded to characterize Kagan as pro-choice on abortion, in favor of gay marriage, and a supporter of citing foreign law. “If I say something inappropriate, please stop me,” Coburn said.
“Well, I suppose a few comments,” Kagan said, stressing that positions she might take as a legislator are something altogether different from how she might approach issues as a justice.
“I’m not saying this is how you are going to judge,” Coburn said. “You fought for a lot of causes in your life. And that’s part of who you are. I don’t know one judge who can totally separate who they are from being a judge.”
“How are you going to take off your liberal hat?” Coburn continued.
“Senator Coburn, that hat has not been on for many years,” Kagan said. “I’ve had a 25-year career in the law. Four of those years were spent in the Clinton White House.”
The senator tried one more tack: “What do you say to people who are worried that your political positions will influence your judicial positions?”
“Well, I hope they would listen to this hearing and not come away with that view,” Kagan said. “It’s all about law and making your best judgment.”
Coburn, a physician and nonlawyer, and the last Republican to question Kagan today, turned to the potential legal battle over the Obama health-care bill’s provisions mandating that individuals purchase health care, although he couched it differently.
“Do we have the power to tell people what to eat every day?” Coburn said. “What is the extent of the commerce clause?”
Kagan noted that the Supreme Court has struck down some laws enacted under the commerce power when the activities being regulated lacked a connection to economic activity. But she added that, in general, the court has shown deference to Congress on the scope of the commerce clause.
Coburn didn’t appear satisfied with her answer, but his time was up.
Kagan news from ABAJournal.com:
Corrected July 1 to identify Sen. Coburn as hailing from Oklahoma.
Corrected July 1, 2010, to identify Sen. Coburn as hailing from Oklahoma.