The (Not-Quite) Conclusion
The Kagan hearings have officially concluded. A whirlwind of questioning and testimony from panelists gave watchers plenty of new information about the nominee. The Alliance for Justice has prepared a very useful (and concise!) report on the hearings, identifying key quotes that shed light on Kagan's perspectives on a variety of issues, including guns, abortion, campaign finance reform, national security and more. The debate continues over whether Kagan was sufficiently forthcoming in her answers, with notable arguments on both sides --for example, Jeffrey Rosen gives an emphatic 'yes,' and Senator Arlen Specter a disgruntled 'no'. This conversation has been amplified by Kagan's assertion in a 1995 article that hearings on Supreme Court nominees are often a "vapid and hollow charade."
One thing that became abundantly clear over the course of the hearing is that Kagan is distinctly likable. Dahlia Lithwick, Senior Editor at Slate, put it best:
"A wry, charming, witty person who seems to get better and better as the nine-plus-hour day drags on and on . . . Kagan gives the impression that there's no place she'd rather be than in a one-on-one seminar on the Voting Rights Act with Ben Cardin or a private tutorial on the propriety of citing foreign law with Chuck Grassley."
During the hearings, there were three particularly notable moments for the RAC. The first two were when Senators Feinstein and Cardin asked questions related to the religion clauses of the First Amendment. (This was a welcome change from the Sotomayor hearings when, aside from a quick question from Senator Cardin, conversations about the religion clauses were largely absent.) The RAC coordinated a letter from 21 groups committed to the preservation of religious liberty, asking the members of the Senate Judiciary Committee to raise questions related to Establishment and Free Exercise clauses during the hearings. While the Senators did not use the exact wording that we suggested, they certainly hit on a few of the topics that we asked them to address, namely taxpayer standing and the values that the clauses seek to protect. And now, we know a little bit more about how a Justice Kagan would approach questions related to religious liberty. (For a transcript of the religious liberty questions and answers, click here.)
The third memorable moment was when Kagan eloquently defended the legacy of Israeli Supreme Court Justice Aharon Barak. Last week, Robert Bork, former Solicitor General and unsuccessful Supreme Court nominee, asserted that Kagan's admiration of Justice Barak should disqualify her from serving, deeming Justice Barak to be the quintessential activist Justice. Last week, Rabbi Saperstein expressed his outrage at this comment, stating: "Chief Justice Barak's legacy of affirmation of fundamental rights and the rule of law and his profound and enduring impact on the Israeli judicial system, should be celebrated and admired, not used as a political tool to derail the confirmation of a qualified nominee." When asked about her admiration of Justice Barak, Kagan responded:
"I do admire him. His is very often called the John Marshall of the state of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel - a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution - he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation. . . I admire Justice Barak for what he's done for the state of Israel and ensuring an independent judiciary."
The hearings are over, but the process continues. The Judiciary Committee will likely vote on the nomination either during the week of July 12th or July 19th. Then, the full Senate will vote on the nomination. A filibuster of the nomination is unlikely, but so is strong Republican support. The vote will take place before the start of Senate's August recess, with the goal of having "Justice Kagan" on the bench for the start of the Supreme Court term in the Fall.
















