On the second day of Kagan's confirmation hearings, in which she was the sole witness, we learned that she no longer believes that judicial nominees should answer the questions put to them in confirmation hearings.
Ms. Kagan’s responses, during a long and sometimes tense day of parrying with members of the Senate Judiciary Committee, were similar to those of Supreme Court nominees past. But unlike her predecessors, Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled, saying she now believed it would be inappropriate even to answer questions that might “provide some kind of hints” about her views on matters of legal controversy.
“I think that that was wrong,” she said. “I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”
That will certainly make the confirmation hearings substantially less informative, and certainly less entertaining, so it's a good thing we've got Jefferson Beauregard Sessions, III for comic relief, if nothing else. First there was his equating Citizens United and Brown v. Board of Education. Corporation as citizen has now been extended by Jefferson Beauregard Sessions, III as corporation as minority citizen subject to systematic discrimination. I kid you not.
According to Sen. Jeff Sessions (R-AL), the top Republican on the Judiciary committee, [the Citizens United decision is] just like the time the Supreme Court desegregated public schools!
Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.
"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.
"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."
How is that like Citizens United? "I think this Court, when they said 'Wait a minute! If you're talking about a precedent that says the government can deny the right to publish pamphlets, then we've got get rid of this one outlier case Austin -- 100 years of precedent -- and go back to what the Constitution [says].' I don't think that's activism."
Then there was the part where he called her a liar, essentially, in response to her answers regarding her decision as Dean of Harvard Law School to follow the school's anti-discrimination policy and restrict access of military recruiters to the school's career services office.
"I guess what I'm saying is the overall picture that she portrayed of the situation seems to me to be disconnected to the reality of it," Sessions told reporters during a break in the hearings this morning. "I believe a Supreme Court justice has got to show clarity of mind, the ability to rigorously analyze complex situations and state them clearly and accurately with intellectual honesty."
"I feel like that she was not rigorously accurate in describing the whole nature of this circumstance," added. "And so I'm disappointed in it."
So, a reporter asked Sessions, does that mean Kagan's lying?
"I'd just leave it as what I said," Sessions said.
Shortly thereafter, Sessions was on CNN again all but calling Kagan a liar. "I begin to worry -- it worried me whether she had the intellectual honesty, the clarity of mind that you would expect on the Supreme Court of the United States," Sessions told the network.
More seriously, an exchange with Lindsey Graham on the nature of the U.S. response to terrorism and indefinite detentions. Emptywheel has a extensive summary of the exchange, in which Kagan was strained to answer questions regarding the positions the administration has taken, arguing against habeas rights for Bagram detainees. It's a line of questioning that will hopefully continue tomorrow, with Sens. Whitehouse, Klobuchar, Kaufman, and Franken left from yesterday to still question Kagan.
The hearings resume this morning at 9:00, EDT. After the remaining Senators finish the question round with Kagan, the committee will hear from witnesses