Conventional wisdom holds that Elena Kagan revealed little but a knack for empty platitudes during her U.S. Supreme Court confirmation hearing. She simply followed a script, commentators said — a script that nominees for two decades have used and that she slammed in a 1995 law review article.
But the popular analysis misses a lot that Kagan did tell the nation.
During 17 hours of testimony over two days, Kagan sketched the outline of a judicial philosophy. She dropped hints about a handful of precedents related to abortion and same-sex marriage. She offered glimpses of her personal politics, calling herself “generally progressive.” And she gave her audience big doses of a personality and sense of humor that disarmed her critics.
“I think she actually said a lot,” said Marge Baker, executive vice president of People for the American Way in Washington. The liberal group endorsed Kagan on June 30, citing testimony in which the nominee said the U.S. Constitution must be interpreted in light of new circumstances. “She came back to that theme a number of times, and it was refreshing,” Baker said. “The public was very much hearing about her judicial philosophy.”
With Kagan’s confirmation all but assured within a month, it’s not clear when the public might hear her speak at length again. Outside the opinions she would write as a justice, her responses to the often-cutting interrogation by members of the Senate Judiciary Committee gave average citizens and appellate lawyers alike a rare window into her views.
Sen. Lindsey Graham (R-S.C.), who bantered easily with the nominee on subjects as varied as Jewish traditions and the law of war, said of her performance, “I think the hearing has been on the margins better, but not much better, than hearings past.”
AFTER YOU, CONGRESS
Among the messages Kagan sent was that she would interpret the Constitution’s commerce clause broadly, granting Congress and the executive branch wide leeway to craft domestic policy. “Courts would be wrong to strike down laws that are senseless just because they’re senseless,” Kagan told Sen. Tom Coburn (R-Okla.) on the first day of questioning. “The principal protector against bad laws,” she said, “is the political branches themselves.” While she noted that Congress’ power to regulate under the commerce clause is not limitless, she sidestepped Republican attempts to get her to name an area where lawmakers have no authority.
Kagan served as a top policy aide to President Bill Clinton, and on the second day of her testimony, she returned to the idea that judges should grant deference to policymakers. “Courts do have an important role in policing those constitutional boundaries,” Kagan told Sen. Ted Kaufman (D-Del.). “But in fulfilling that role, courts should realize they’re not the principal players in the game.”
That deference, she said, should extend to how laws are interpreted. She said the “only thing” that matters when a judge interprets a statute is the intent of those who wrote it. “What the courts should be doing in applying those laws is trying to figure out what Congress meant and how Congress wanted the laws to be applied,” Kagan said.
In response to a question from Sen. Al Franken (D-Minn.), she said she would go to great lengths to determine lawmakers’ intent, including looking at legislative history. That places her much closer to Justice Stephen Breyer, who used to work in Congress, than to Justice Antonin Scalia, who is dismissive of using legislative history to interpret a statute.
“The courts have to be careful about looking at legislative history and make sure that what they’re looking to is reliable,” Kagan testified, “but courts should not at all exclude signs of congressional intent and should really search hard for congressional intent when the text of the statute itself is unclear.”
Kagan did not shy away from another contentious area of judicial philosophy. In the second question she faced, Judiciary Committee Chairman Patrick Leahy (D-Vt.) asked her to describe the Constitution’s evolution since its adoption. She said its general provisions were “meant to be interpreted over time,” seemingly disagreeing with the idea that the drafters’ views set in stone the Constitution’s meaning.
“The Constitution is a document that does not change — that is timeless,” Kagan said later to Sen. John Cornyn (R-Texas). But, she continued, “in that process of being applied to new facts and new circumstances and new situations, development of our Constitution does indeed occur.”
ASKED AND TOLD
While declining to say how she would rule in particular cases, Kagan tipped her hand on several issues that could come before the Court. On one issue, gay rights, she reiterated her personal opposition to the ban on gays and lesbians serving openly in the military. “I have repeatedly said that I believe the ‘don’t ask, don’t tell’ policy is unwise and unjust. I believed it then, and I believe it now,” Kagan said, referring to when she denounced the policy as dean of Harvard Law School.
At another point, she downplayed a statement she made last year that had worried gay-rights advocates. Prior to her confirmation as solicitor general, she had answered a written question from Cornyn by saying, “There is no federal constitutional right to same-sex marriage.” Sen. Jon Kyl (R-Ariz.) asked her on June 30 to elaborate: Had she meant that the Constitution could never be read to include such a right, or was she merely describing current law? Kagan said she meant the latter. “I’m saying that I very much understood, accepted the state of the law, and that I was going to perform all my obligations as solicitor general consistent with that understanding and consistent with that acceptance,” Kagan said.
Ty Cobb, legislative counsel to the gay-rights group Human Rights Campaign, welcomed Kagan’s explanation as “a clarifying moment” that he considered “certainly positive.”
Sen. Dianne Feinstein (D-Calif.) asked Kagan whether laws restricting abortion access must have exceptions to protect the health of the mother. Kagan said they must, notwithstanding the Court’s 2007 decision in Gonzales v. Carhart upholding a federal ban on so-called “partial-birth” abortion that had no such exception. “I think that the continuing holdings of the Court are that the woman’s life and that the woman’s health must be protected in any abortion regulation,” she said, citing the Court’s 1973 decisions in Roe v. Wade and Doe v. Bolton.
In other words, said Nancy Northup, president of the Center for Reproductive Rights, Kagan showed support for maintaining access to abortion. “She was clear in her testimony that the general contours of the protections laid out in Doe and Roe are ones that she’s in agreement with,” Northup said.
SMILE IN PLACE
Beyond judicial philosophy and policy views, Kagan’s confirmation hearing also showcased the person who would sit on the high court. She displayed a talent for ingratiating herself with her questioners, seeking to win them over with patience, humor and emphasis on their common ground. Asked by one of her toughest questioners, Sen. Arlen Specter (D-Pa.), about allowing cameras in the Supreme Court, Kagan said she favored the idea. She added, tongue-in-cheek, “It means I’d have to get my hair done more often, Senator Specter.”
The joke caught Specter off guard, but after 10 seconds of laughter he complimented her: “You have shown a really admirable sense of humor.”
Near the end of 10 hours of questioning on June 29, Coburn, another aggressive questioner, led into a question by saying, “This is a softball, OK?”
Kagan, relaxed despite the stress, cracked, “You promise?”
Her supporters hope she will relate just as easily to her eight future colleagues on the Court.
David Ingram can be reached at email@example.com.