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U.S. SUPREME COURT: ELENA KAGAN

Live: Elena Kagan Senate confirmation hearing

Questioning of Kagan done, senators head to closed session

June 30, 2010|By Mike Memoli and Michael Muskal

6:20 p.m. EDT
The Senate Judiciary Committee went into a closed session late Wednesday afternoon after two days of public questioning of Elena Kagan, whose nomination to the Supreme Court appears headed toward confirmation.

Committee chairman Patrick J. Leahy (D-Vt.) closed the public question-and-answer session by thanking Kagan for her cooperation and patience, saying she answered its questions "more fully than recent nominees" had.

"You've demonstrated an impressive, encyclopedic knowledge of the law," he said.

His Republican counterpart, Sen. Jeff Sessions of Alabama, said he remained "troubled" by Kagan's testimony on her role in banning military recruiters at Harvard Law School, while expressing concern as well about such issues as gun rights, citing foreign law in domestic cases and the idea of "legal progressivism," something he called a "pernicious philosophy."

"[People] want to know that the next nominee to our Supreme Court will be faithful to that Constitution, even if they do not like it," he said. "Some of the things you said today … the combination of record and statements, leaves me uneasy."

Sessions did not definitively say he would vote against Kagan's nomination. But after testimony noted more for Kagan's quick wit than any controversial statements, it is likely she will have enough support among the Democratic majority for the nomination to be sent on to the full Senate.

Before that vote, the committee will hear from a panel of witnesses in support of and opposing Kagan's nomination. The proceedings were hurried somewhat because of memorial services planned Thursday and Friday for the late Sen. Robert Byrd (D-W.V.).

Leahy noted as he closed the open hearing that this would likely be the final time Kagan would have to testify at forum like this. She said she found the process "somewhat wearying," but that it was "a great moment in my life."

-- Michael Memoli in Washington

4:58 p.m. EDT
Vegetables, werewolves and vampires
It can be a struggle, even for a senator, to find something new to say in the third day of marathon hearings into the qualifications of a Supreme Court nominee. But when there is a will, there is always a way, even if it involves werewolves and vampires, fruits and vegetables.

In questioning Elena Kagan, Sen. Tom Coburn (R-Okla.) on Tuesday and Wednesday invoked fruits and vegetables as he posed his questions about the expansion of the Constitution's commerce clause. Can a government pass a law that forces people to eat three servings of fruit and three of vegetables, asked the senator, who is also a doctor.

Kagan refused to really answer the question which is more political than whimsical.

The question is part of the conservative GOP attack on the Democratic-inspired healthcare insurance overhaul. The law mandates that Americans have health insurance and that requirement has been challenged by conservatives, who argue that it is an example of big government improperly infringing on the liberty of citizens.

It is possible that Kagan, if confirmed, may get to sit in judgment on the healthcare overhaul, but probably not on the efficacy of fruits and vegetables.

There are host of potential Supreme Court issues that come from vampires and werewolves. They could generate such hot political issues as inclusion, illegal immigrant status and cruel and unusual punishment.

Alas, when Sen. Amy Klobuchar (D-Minn.) mentioned them, it was really more cultural than political. Which denizen would Kagan support in the hot love triangle at the core of the "The Twilight Saga: Eclipse" movie, which opened this week? For those who have skipped this cultural icon, Bella, the human heroine, has to choose between Edward the vampire or Jacob the werewolf.

Kagan, who has made dodging her personal preferences an art form during the hearings, sidestepped this one as well.

--Michael Muskal

3:47 p.m. EDT
Legal questions, political issues
The Senate Judiciary Committee hearings became more like a law school seminar Wednesday afternoon as Sen. Lindsey Graham and Supreme Court nominee Elena Kagan discussed two of the more complex legal questions: How do laws change? And what is the role of science in law?

The subjects may sound theoretical, but they go to the heart of abortion rights, one of society's more contentious political issues. They are also mileposts on what has become a GOP thread in examining Kagan's role as a political advocate in the Clinton White House.

Graham, a conservative South Carolina Republican who opposes abortion, started by asking Kagan about one of the great reversals of the Supreme Court on race. It was in 19th century that the court upheld the idea of separate but equal in Plessy vs. Ferguson, only to reverse it in 1954 in Brown vs. Board of Education.

The Brown case was argued by then-attorney Thurgood Marshall, who later served on the Supreme Court and hired Kagan as a law clerk.

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