Supreme Court Nominations

'You’ll get Justice Kagan, You Won’t Get Justice Marshall'


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Kagan fields questions from senators
Tuesday. Screen shot from Judiciary
Committee's live webcast.

A relaxed, confident, and sometimes feisty Elena Kagan engaged with members of Senate Judiciary Committee on a variety of issues this morning, including on the question of whether she is a “legal progressive” and whether she would be in the mold of Thurgood Marshall if she is confirmed for the U.S. Supreme Court.

“If you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall, and that’s an important thing,” Kagan told Sen. Jon Kyl, R-Ariz., in answer to questions about her judicial philosophy and whether she agreed with Marshall’s views about using the law to help the disadvantaged.

“But I am having a hard time figuring out whether you would tend to judge cases more actively and for the rights of the disadvantaged, or whether you would judge on the facts and the case before you,” Sen. Kyl told her.

Kagan said she would judge based on “what the law requires, that’s what matters.”

Kyl asked whether she agreed with characterizations that the current Supreme Court is “too activist.”

“I would not want to characterize the current court in any way—I want to join it,” Kagan replied.

“And they say you’re not political,” a smiling Kyl said.

Earlier, Kagan sparred with Sen. Jeff Sessions, R-Ala., about the issue of her handling of military recruiters while she was dean at Harvard Law School. And she rebuffed suggestions be Sessions that she is a “legal progressive.”

“Senator Sessions, I honestly don’t know what that label means,” Kagan said. Sessions nevertheless said that based on her record, “I would have to classify you as a legal progressive.”

Sen. Herb Kohl, D-Wis., did not fare any better when he told Kagan it was a “fair question” to ask whether she was likely to pull the court further to the left if she is confirmed.

“It might be a fair question,” she replied, without venturing any answer. Kohl quickly moved on.

Later, when Sen. Orrin Hatch, R-Utah, was questioning Kagan, the senator got into a brief but testy exchange with Sen. Leahy about whether he was allowing the nominee to answer his questions. Hatch turned back to Kagan and said that members of the Judiciary Committee had to “have a little back-and-forth sometimes, or else this place would be as boring as hell.”

“And it takes the spotlight off me, so I’m all for it,” a smiling Kagan said.

“I’ve been informed that hell is not boring,” Hatch said.

“Just hot,” Kagan replied.

Kagan faced questions over the Citizens United v. Federal Election Commission decision by the Supreme Court, on antitrust, and, briefly, on abortion.

Kagan told Sen. Dianne Feinstein, D-Calif., that she believed that any abortion regulation should contain an exception for the health of the mother.

“The woman’s health and woman’s life must be protected,” Kagan said.

Kagan day one news from ABAJournal.com:

Kagan Hearing Podcast: Busy Day at the Court and On the Hill

GOP Opens Its Offense Against Kagan’s Political Stances, Military Recruitment and Legal Heroes

Busy Morning at the High Court; Big Decisions, Farewells and Scrutiny of the Court’s Latest Nominee

Senators Begin Opening Statements at Kagan Confirmation Hearing

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Kagan Faces Early Squabbling Over Harvard Law School’s Policy of Handling Military Recruiters

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