Kagan's second day of questioning

Topic A
Wednesday, June 30, 2010; 5:13 PM


Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law; contributor to the legal blog The Volokh Conspiracy

Wednesday's hearings offered more of the kabuki theater we have come to expect from Supreme Court confirmation hearings. Senate Republicans tried to elicit evidence she would be a doctrinaire liberal on the court, with little success. Peppered with questions on topics from Habeas Corpus and the Commerce Clause to gun rights and gay marriage, Kagan refused to show her hand. She would not even identify a single "activist" judge in the nation's history. She was happy to explain existing doctrine and identify the relevant precedents, but she would not so much as hint at how she might rule in future cases. Settled precedents were "settled," she explained, only insofar as they are due the same respect as any other precedent of the court, which would leave her free to re-evaluate "settled" law as she sees fit.

Republicans may not have had much success extracting desired answers from the nominee, but Senate Democrats did not fare much better. No one showed more frustration with Kagan's evasiveness than newly-minted (but not reelected) Democrat Arlen Specter. Several Democrats posed questions decrying the alleged conservative and pro-business "activism" of the Roberts Court, but Kagan would not take the bait. She demurred on the Democrats' criticism of the current court, often using her responses to gently correct misrepresentations and correct their caricatures of the court. She patiently explained to her friendly inquisitors how changed economic understandings could induce judicial revisions to anti-trust law and why a justice might ignore legislative history when statutory text is clear. Without the benefit of staff-scripted questions or talking points, she demonstrated greater command of the legal questions, demonstrating why she was the only person in the room under consideration for the nation's highest court.

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