Kagan Shows Feisty Side as Questioning Begins

Posted June 29, 2010 at 5:43pm

Supreme Court nominee Elena Kagan emerged largely unscathed from her first full day of questioning by the Judiciary Committee, despite a sharp attack on her views of the military by ranking member Jeff Sessions (R-Ala.).

Little if anything seemed to stick to the nominee as a number of Republicans — including Sens. Orrin Hatch (Utah) and Chuck Grassley (Iowa) — sought to put Kagan through her paces.

Hatch engaged in a heated discussion with Kagan on her views of campaign finance reform and the recent Citizens United v. Federal Election Commission decision. But Hatch’s criticisms on the issue seemed more aimed at liberals in general, not Kagan.

“I’m getting a little tired of people on the left saying it was a terrible case, it was wrongly decided, when, frankly, let me make this point, in Citizens United the court listed at least 25 precedents dating back almost 75 years … holding generally that the First Amendment protects corporate speech and specifically that it protects corporate political speech,” Hatch said.

Other Republicans, however, appeared far less inclined to press Kagan.

Sen. Lindsey Graham (S.C.), who is widely viewed as the only committee Republican likely to support her nomination, engaged in a cordial, often friendly, exchange with Kagan that was punctuated repeatedly by laughter. At one point, when Graham asked about the Christmas Day bomber, Kagan was unclear to which specific issue the lawmaker was referring.

“I just asked you where you were at on Christmas,” Graham quipped.

“You know, like all Jews, I was probably at a Chinese restaurant,” Kagan shot back to laughter.

“Great answer. Great answer,” Graham replied.

Minority Whip Jon Kyl (R-Ariz.) unwittingly gave Kagan an assist when he pushed her to discuss handwritten notes on a campaign finance memo.

The memo, produced during Kagan’s time in the Clinton administration, included notes from Kagan that appear to call the National Rifle Association and the Ku Klux Klan “bad guy” groups.

Minority Leader Mitch McConnell (Ky.) and other Republicans have latched onto the memo — and others like it — as proof Kagan was attempting to change campaign finance laws to favor Democrats and their allies over Republicans.

During his questioning, Kyl asked Kagan, “So if you’re presented a case involving, for example, the NRA, would you consider the NRA to be a bad-guy organization, deserving of defeat in the case?”

With an opening to shoot down a prominent GOP talking point, Kagan quickly moved to dismiss the matter of the Clinton-era memos.

“Sen. Kyl, I’m sure that that was not my reference. The notes that you’re referring to are notes on a telephone call, basically me jotting down things that were said to me. And I don’t remember that conversation at all, but just the way I write telephone notes is not to quote myself.”

[IMGCAP(1)]Kyl persisted, saying, “And it wasn’t your terminology; it was somebody else’s?”

“As I said, or a paraphrase. But it was … you know, the way I write telephone notes is just to write down what I’m hearing,” Kagan answered.

Kyl tried one final time to have Kagan tie the NRA to the KKK, asking, “You wouldn’t, in any event, put the NRA in the same category as the KKK?”

“It would be a ludicrous comparison,” Kagan responded.

Democrats — most notably, Sens. Dianne Feinstein (Calif.), Arlen Specter (Pa.) and Russ Feingold (Wis.) — were often Kagan’s most aggressive questioners. While Specter repeatedly cut off Kagan in mid-answer to questions on the court’s relationship with Congress, Feingold succeeded in making Kagan visibly uncomfortable.

When Feingold asked if Kagan was “surprised” by the public uproar surrounding the Citizens United case, a clearly uncomfortable Kagan struggled to answer.

“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.

That answer did not satisfy 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 … read the same newspapers that everybody else does,” Kagan responded.

Aside from Democrats, Sessions was the only member to aggressively push Kagan, using the bulk of his 30-minute question period to hammer at Kagan’s views of the military.

For months, Sessions has assailed Kagan for limiting military recruiters’ access to the Harvard Law School campus while she was dean over the “don’t ask, don’t tell” policy banning openly gay individuals from serving.

Sessions accused Kagan of giving recruiters “the runaround” and treating service members in general as “second-class citizens.” When Kagan refused to agree with that characterization, Sessions said: “I’m a little taken aback by the tone of your remarks because they are unconnected to reality. I know what happened at Harvard.”

Unlike recent Supreme Court nominees John Roberts and Sonia Sotomayor, Kagan didn’t shy away from the fight.

Kagan, although appearing calm, repeatedly rejected Sessions’ charges, maintaining that recruiters had access to the campus during her entire tenure as dean, and even noting that military recruitment increased.

“It went up. And it went up because we ensured that students would know that the military recruiters were coming to the campus,” she said.

Kagan’s rebuttals did nothing to placate Sessions, who during a break came close to accusing her of lying to the committee.

“I feel like that she was not rigorously accurate in describing the whole nature of this circumstance. And so I’m disappointed in it,” Sessions told reporters.

“There’s not two truths about what happened at Harvard. There’s one, one truth,” he added.