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Looking for the ‘Real’ Elena Kagan in Confirmation Hearings

Like just about everyone else covering Elena Kagan’s confirmation hearings this week, I observed that she did a good job of ducking tough questions.

Sen. Arlen Specter: Would she vote for the Supreme Court to take up a claims case he’s interested in?

Kagan demurred, pointing out she’s still Solicitor General and might have to respond in that capacity.

Specter persisted: What if she were on the high court?

Kagan: “I don’t want to count my chickens.”

Sen. Charles Grassley, in a line of questions about guns: “Is self-defense a pre-existing fundamental right?”

Kagan: “I never had occasion to look into it.”

Sen. John Kyl: Would she clarify her statement that there is not a constitutional right to same-sex marriage, her personal opinion, or merely a reflection of current law?

Kagan: “I don’t think that that would be appropriate,” citing the possibility the issue could face the court.

And so on.

But that’s not the whole story. There were things I did learn about her.

Her political views are “generally progressive.” Noteworthy since other recent appointees have declined to characterize themselves.

She believes “the worst thing you can say about a judge is that he or she is results-oriented.” And: if a law being considered is unclear in any way, justices should look first to what Congress intended when it wrote the law.

On the other hand, she doesn’t believe all legal answers lie in what the Founding Fathers intended when they wrote the Constitution. Some, but not all, since circumstances, she said, sometimes require new interpretations.

She knows Supreme Court rulings: senators on the judiciary committee seemed impressed with her command of high court case history. She respects court decisions as “settled law,” especially if they were the result of thorough argument.

She is tough. She sat through hours of sharp questions and comments, like the one from Sen. Tom Coburn, who told her his hair had “grayed a bit” over the past few days because of her position on original intent.

She believes in trying to win over her critics. Right after Coburn mentioned his hair, and his admiration for the Federalist Papers, she told him she did too and promised she would read them again.

Finally, she has a sense of humor: Coburn’s wasn’t the first comment about hair. The day before, when Specter asked what Kagan thought about TV cameras at the Supreme Court, she answered she is in favor, and noted, “This would mean I’d have to get my hair done more often.”

There were several other laugh out loud moments, as when Sen. Lindsey Graham, in a line of questions about policy toward domestic terrorism, asked what Kagan was doing last Christmas Day. She answered: “I imagine what most Jewish people do. Eating at a Chinese restaurant.”

After three days, a lot of questions went unanswered. Even so, I did come away with a better understanding of who Elena Kagan is.

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