Elena Kagan begins her second day before the Senate Judiciary Committee… (Rafael Suanes / MCT )
6:43 p.m. EDT
For Sen. Tom Coburn (R-Okla.), the issue after more than nine hours of questioning Elena Kagan's qualification to be a Supreme Court justice was the paucity of answers. "Maybe you should be on 'Dancing with the Stars,' " the conservative Republican said, citing a range of social issues he argued that Kagan has stepped around without answering.
"I think you are a liberal and strong enough to defend that," Coburn said. Refusing to acknowledge her politics is wrong and is unfair to the American people, Coburn insisted. Kagan has been very careful to separate her role as an individual and as the solicitor general representing the government's position from what she would do as a judge looking at a case. That separation has allowed her to avoid describing her personal politics despite repeated GOP pleas.
In her response to Coburn, Kagan argued there were some jobs where political leanings were proper knowledge and some where it was not. "There is a difference between being a legislator then as a judge," she said.
"The American people have a right to know what Elena Kagan is," Coburn said. "She is smart, tough as nails, a superior intellect," he said trying to her coax her into stating a political position.
It was an obvious line of Republican questioning, but Kagan, like most other Supreme Court nominees before her, sidestepped any political pronoucement.
Not even honey was more conducive.
"This is softball," Coburn continued.
"Promise?" Kagan replied to laughs, the latest in a day of one-liners and general friendliness.
"What do you say to people who ask if political positions influence your decisions?" Coburn pressed. "What do you tell the American people listening to this hearing?" Kagan argued that her political role in President Bill Clinton's White House was just four years in a 25-year legal career that was mainly as a teacher, scholar and academic. Then she came to a point she has tried to make in other ways throughout the long day of cross-examination.
"I would hope they listen to this hearing and come away with the view that it is all about law when you put on that robe," Kagan said.
After Coburn, Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) asked if Kagan would like to take a break before getting to some of the others senators.
"Some of the others, not one of the others," Kagan responded.
At least one more Democrat will get a chance to ask questions on Tuesday then the committee will decide whether to finish the rest of the first round of questioning or recess until Wednesday.
-- Michael Muskal
Reach of the federal government
6:24 p.m. EDT
Sen. John Cornyn, chairman of the Senate Republicans' campaign committee, touched few hot buttons in his questioning of Elena Kagan late Tuesday afternoon. The Texas senator did, however, probe the Supreme Court nominee about what he said was the over-reach of the federal government in recent years, raising the recently passed healthcare law as an example.
"Many Americans are concerned ÃƒÂƒÃ‚Â‚ÃƒÂ‚Ã‚Â… that Congress has imposed an individual mandate on health coverage and imposed a penalty, a financial penalty, if you don't purchase government-approved health insurance. To my knowledge that would represent an unprecedented reach of Congress' authority to legislate under the interstate commerce clause," Cornyn said.
Kagan said that existing law "is to grant broad deference to Congress in this area," with few exceptions. She did not refer to the healthcare law in her response.
"To the extent that Congress regulates the channels of commerce, the instrumentalities of commerce and also to the extent that Congress is regulating things that substantially affect interstate commerce, there the court has given Congress broad discretion," she said.
Since the New Deal era of the 1930s, the Supreme Court has said that the federal government can regulate almost anything that involves economic or commercial activity. Some legal experts have argued that such precedent would make legal challenges to the healthcare legislation difficult.
Cornyn had initially stated Tuesday that he hoped to revisit an earlier discussion with Sen. Jeff Sessions (R-Ala.) related to Kagan's role in banning military recruiting at Harvard Law School, but his time expired. Cornyn will likely return to the subject as he and other senators get an opportunity for a second round of questioning Wednesday afternoon.
-- Mike Memoli in Washington
Kagan brings humor to the hearing
4:24 p.m. EDT
While fielding serious questions, Elena Kagan seems to be waging a charm offensive with the Senate Judiciary Committee, showing a surprisingly sharp sense of comedic timing.