Kagan Continues to Avoid Major Missteps

Posted June 29, 2010 at 1:25pm

Supreme Court nominee Elena Kagan on Tuesday was managing to avoid any significant blunders during her first round of questioning before the Senate Judiciary Committee.

But Senators weren’t giving Kagan an easy time. After a tough grilling earlier in the day by ranking member Jeff Sessions (R-Ala.), Democrats took their turn, peppering the solicitor general with a series of tough questions.

Sen. Dianne Feinstein (D-Calif.) probed Kagan on a series of national security, gun control and abortion issues, while Sen. Russ Feingold (D-Wis.) repeatedly pressed Kagan to say whether she felt the Supreme Court’s decision to proactively take up a controversial campaign finance reform case, Citizens United v. Federal Election Commission, was “unusual.”

“Wasn’t it highly unusual, if not unprecedented, for the court to do this?” Feingold asked.

Clearly uncomfortable, Kagan stuttered several times before responding that, “certainly the case, as it came to the court, did not precisely address — did not address the question that the court ended up deciding.”

Feingold then asked Kagan if she was “surprised” by the public uproar surrounding the case.

“Oh, I don’t know, Senator Feingold. I’m not — I’m not, you know, an expert in — in public reaction to things, and I don’t think that the court should appropriately consider the public reaction in that — in that sense,” Kagan said.

But that answer clearly did not please Feingold, a campaign finance reform advocate who continued to press Kagan on whether she takes note of the public reaction to high court rulings.

“Senator Feingold, I — I — I read the same newspapers that everybody else does,” Kagan responded.

Outside of Sessions, who pressed Kagan over her position on military recruiters while serving as dean of the Harvard Law School, Kagan fared much better with Republicans.

During his questioning, Sen. Orrin Hatch (R-Utah) asked Kagan about on her role in the Citizens United case. At one point Judiciary Chairman Patrick Leahy (D-Vt.) interrupted him, prompting Hatch to quip, “Let me ask my questions the way I want to … I’m going to be fair. I intend to be, and you know that after 34 years.”

After some laughter, Hatch observed, “We have to have a little back-and-forth every once in a while or this place would be boring as hell, I tell you.”

“And its gets the spotlight off me, you know, so I’m — I’m all for it. Go right ahead,” Kagan said.