Hearings Give Glimpse of Kagan's Views on Hot Issues

Supreme Court nominee Elena Kagan offered a glimpse of her views on key issues.

June 30, 2010, 10:12 AM

WASHINGTON, June 30, 2010— -- Supreme Court nominee Elena Kagan has made no apologies for her liberal politics during her Senate confirmation hearings this week.

"I've been a Democrat all my life, my political views are generally progressive," she told Republican Sen. Lindsey Graham Tuesday.

When another Republican, Sen. Tom Coburn, pointed out, "You're very pro-choice. You believe in a woman's right to choose. You believe in gender-mixed marriages or gay marriage," Kagan didn't disagree.

But the person seeking to become the 112th Supreme Court justice and the fourth woman to sit on the bench has repeatedly told senators that she'd separate her politics from her judging.

"You are looking at law all the way down, not your political preferences, not your personal preferences," Kagan told Sen. Amy Klobuchar, a Democrat from Minnesota, this morning.

"Every judge has to be committed to the policies of restraint ... every judge has to realize that the people have to make the fundamental decisions in this country," she said.

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Still, Kagan's critics are concerned that her assurances of restraint belie the reality of a progressive personal mantra.

"'It's law all the way down' is a nice-sounding proposition," writes M. Edward Whelan III, president of the conservative Ethics and Public Policy Center, "but there's nothing in the judicial philosophy that Kagan has so far expressed that supports her assertion that her approach would be constrained."

Coburn told the nominee, "I do not know one judge who can 100 percent separate themselves of who you are when you judge."

So who is Elena Kagan and what are her beliefs on divisive legal questions? Her testimony has provided a glimpse of her views on such topics as abortion, gun rights and executive power.

"I think somebody also asked me whether I had moral qualms about imposing the death penalty ... and I said that I had no such moral qualms and that I could conscientiously apply the law as it was written," Kagan told Sen. Richard Durbin, a Democrat from Illinois.

Kagan directly addressed the controversial ban on a procedure its critics call "partial birth abortion," which the Supreme Court has upheld. "With respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation," she told California Sen. Diane Feinstein.

Kagan Offers Glimpse of Views on Key Issues

Despite her reticence as a Supreme Court clerk in 1987 to accept the notion that the Constitution gives an individual a right to bear arms, Kagan told the committee that recent Supreme Court decisions have made that conclusion settled law.

Kagan characterized the recent Heller and McDonald decisions, which affirmed an individual's right to own a gun, as "binding precedent."

"It's not enough, even if you think something is wrong, the whole idea of precedent is that it is not enough to say precedent is wrong. ... You assume that its right.."

"It's not enough, even if you think something is wrong, to say, 'Oh, well, that decision was wrong.'...The whole idea of precedent is ... that you assume that it's ... right and that it's valid going forward," she said.

Kagan was asked about the constitutionality of the recent landmark health care law.

"Many Americans are concerned 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," said Sen. John Cornyn, who added the mandate would be an "unprecedented reach of Congress's authority."

Kagan responded in broad terms: "Well, I think the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what's necessary in terms of the regulation of the country's economy, but to have some limits."

She said the Constitution limits Congress from regulating noneconomic activities. " I think that that's the limit that the court has set," she said.

Kagan was not asked directly whether she would have to recuse herself from litigation arising from the recent health care legislation. But in an exchange with Sen. Patrick Leahy of Vermont, she suggested that as the Obama administration solicitor general, she had not played a role in any deliberations surrounding domestic policy.

"The solicitor general does not typically take part in policy issues" she said, "the only policy issues I think that I might have taken part in ... are some national security issues. "

War on Terror

Sen. Lindsey Graham praised a recent case Kagan's office won in federal court, denying detainees at Bagram Air Force Base the chance to challenge their detention in federal court.

"I want every conservative legal school and commentator to know that you did an excellent job," he said.

Graham also asked Kagan whether she agreed with the Obama administration's proposition that in the current war on terror the definition of a battlefield is the "entire world" -- a stance that has infuriated some liberals. Kagan replied that as a legal policy matter as solicitor general she agreed.

Kagan also indicated what she thought about reading Miranda rights to a terrorism suspect.

"Do you think it would be in the United States' best interest to have clear guidance to our intelligence community, give them the tools and the flexibility when they capture one of these guys, whether it be in Times Square or in Detroit, to find out, without having to do anything else at the moment, what's the next attack?" he asked.

"I suppose on this one, Sen. Graham, that I'm reluctant to say how I would think about the question as an average, everyday citizen, because I might have to think about the question as a judge," Kagan replied.

She reiterated that she is comfortable with trying suspected terrorists in military commissions.

"Do you personally feel comfortable with that?" Graham asked. "I do. I wouldn't be in this administration if I didn't," she replied.

In a heated exchange with Republican Sen. Jeff Sessions Kagan openly reiterated her disdain for the Department of Defense's policy forbidding gays and lesbians from openly serving in the military.

"I have repeatedly said I believe "Don't ask Don't tell" is unwise and unjust," she said.

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