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Coyle: Kagan Sidesteps Hot-Button Questions on Ideology, Social Issues

Following Elena Kagan's third day of hearings before the Senate Judiciary Committee, Judy Woodruff gets an analysis from Marcia Coyle of the National Law Journal about where her nomination stands.

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    Judy Woodruff anchored our gavel-to-gavel coverage of the hearings today. And she's back here with us now — Judy.


    Thanks, Gwen.

    And I am joined by Marcia Coyle of "The National Law Journal."

    We have been together for the last three days covering these hearings.

    Marcia, first of all, given the unsuccessful efforts on both sides of the aisle to get Elena Kagan to talk — to describe the court, to talk about the justices, to talk about controversial issues, what have we learned about her today?

    MARCIA COYLE, "The National Law Journal": Well, Judy, I think we learned some about her judicial philosophy. She talked about how she would interpret statutes of Congress, for example.

    She said, if the text is clear, then the text provides the answer to the question before the court. But if it isn't clear, then there are other tools that help the court decide. And she mentioned specifically, because she was asked, about legislative history.

    As you know, Judy, legislative history is something that Justice Scalia has no patience for, and he's even mocked it from the bench. But she thinks it's a valid tool. And she also talked about how she would interpret the Constitution.

    She refused to be pin-holed on whether she would only rely on original intent of the founders, something that Justices Scalia and Thomas often rely upon in interpreting the Constitution. She said there's really no one way to look at it.

    She mentioned the decision by the court two years ago on the Second Amendment case, where all the nine justices looked at original intent, and they came up with conflicting views. So, she said you have to take case by case.

    You have to look at it pragmatically, and you apply the Constitution. She noted — she didn't accept that there was such a thing as a living Constitution, which has also caused considerable controversy among the public and in Congress.

    She said that the Constitution doesn't change, but the kinds of situations to which it applies, that changes, and, as the Constitution is applied to new situations, constitutional law develops. So, I think we learned a little bit about how she would approach judging.

    We also learned — she said, as many nominees have said in recent years, that she looks at court decisions, such as the recent Second Amendment case this week and the death penalty, as settled law. And that satisfies some, doesn't satisfy others on the Judiciary Committee, because just about every nominee stands by court precedents, and, as some of them complained during the hearings, the justices then turn around and, in certain cases, will overturn precedent.


    She was also very critical of what she called — and I guess one senator asked about results-oriented judging.

    So, Marcia, when we hear the ranking Republican on the committee, Senator Jeff Sessions, say that — he said at the end of the hearings today we don't know whether you're closer to Ruth Bader Ginsburg or to Chief Justice John Roberts. Is — did she truly leave it that wide-open?


    I don't think she did, Judy. I think, at one point, when she was being asked about her beliefs, she didn't want to give personal opinions, because, quite rightly, she said, you set those aside when you judge.

    But she said, to learn about, her look at her life in the law. She has worked in two Democratic administrations. And you can take something away from that. And I believe she did say at one point that her views are progressive,, which I would understand and I guess many people would understand that she is a liberal.

    And I'm sure that everyone on the Senate Judiciary Committee knows that. So, I don't think it is as wide-open as that she would be another John Roberts.


    Marcia, we know, because she has not been a judge before, there wasn't a body of opinions for the senators to look at, but they certainly did look at her record as dean of Harvard Law School. We heard a lot about the military recruitment issue there. We heard a lot about memos she wrote when she was an aide in the Clinton White House.

    Why would you say the Republicans were not more able to turn those and other things that she's done into negatives for her?


    Well, there — Judy, I don't think there was just a whole lot for them to latch on to.

    We heard an awful lot from the Republicans about the recruiting of military at Harvard Law School and the law school's nondiscrimination policy. And I think Senator Sessions and Senator Graham came closest to actually questioning her honesty when she said that she was trying to juggle the Solomon Amendment, which required equal access for military recruiting at the law school, and the law school's nondiscrimination policy.

    They felt that she was making a political statement when she didn't allow the military to use the office of career services at the law school. So, at that point, it's just, who do you believe?

    The other things they had to look at, for example, they questioned memos she wrote when she was a law clerk. This was back when she was in her early 20s and was clerking for Justice Marshall. For a time there, it almost seemed as if Justice Marshall was before the committee being renominated for the Supreme Court, because she was being held — in a sense, they tried to say she was as activist as they believed he was.

    But you don't — you don't go far when you have the kind of support that the White House marshaled for her. When she was questioned about her clerkship with Justice Marshall, Senator Leahy, after the questioning was ended, was able to come right back with the fact that 29 law clerks who served with her at that time, who served for justices of different political persuasions, all supported her nomination and all echoed her comments that, as a clerk, she channeled her justice's views. That's what they did, too.

    It's just hard. There was a lot of support. When she was questioned about what she did as solicitor general, what she did in the White House, Senator Leahy would come back time and again with letters from conservatives and Republicans who held those positions who had support.

    So, I think the Republicans went into this not having a lot of material-like cases to work with, and just focused on what they thought might be some of her more vulnerable points.


    Very quickly, Marcia, I guess there's not much doubt she will be confirmed. The chairman of the committee is predicting that. Even Republicans on the committee are saying she will be confirmed.

    But, very quickly, this Democratic frustration we saw today with the current court, sum up for us what that is about and how it relates to her.


    Going into the hearings, I think it was pretty clear that the Democratic senators wanted to make the hearings about the Roberts court.

    They have been very frustrated. It actually, I think, starts with the Rehnquist court. They have been frustrated by rulings, particularly the recent Citizens United campaign finance ruling that struck down part of the campaign finance reform law.

    They have been frustrated when the court strikes down laws such as the Violence Against Women Act, the Brady background gun check act. They feel that the court ignores congressional findings. And it is the Roberts court in particular that they feel is the — the conservatives on the Roberts court who they believe have been very activist, particularly recently.


    Marcia Coyle of "The National Law Journal," thanks for today and for your work over the last three days in these hearings.


    It's been fun.


    It has. Thanks.


    Thanks, Judy.