Elena Kagan: Supreme Court nominee eases through GOP questioning

Sen. John Cornyn (R) of Texas said Kagan’s policy shift seemed aimed at stigmatizing the US military on the Harvard campus.

Kagan disagreed. “The purpose of the policy was to express support for our gay and lesbian students … and at the same time to ensure that our students who wanted to go into the military had excellent access to military recruiters and vice versa,” she said.

In addition to questions about gun rights, abortion, and the citation of foreign court decisions in US cases, Kagan was repeatedly questioned about her views on the Constitution’s commerce clause.

Dancing through hypotheticals

In one of the more colorful exchanges of the hearings, Sen. Tom Coburn (R) of Oklahoma asked Kagan to comment on a hypothetical law that was a thinly disguised version of the recent health-care reform law.

Under the hypothetical Coburn bill, Americans would be required by the federal government to eat three vegetables and three servings of fruit every day. “Does that violate the commerce clause,” he asked Kagan.

“It sounds like a dumb law,” she answered.

“What if I said that eating three fruits and three vegetables a day would cut health-care costs 20 percent? Now we’re into commerce,” Senator Coburn said. “Since the government pays 65 percent of all the health-care costs, why isn’t that constitutional?”

Kagan responded that the high court has interpreted the commerce clause broadly to permit Congress to legislate in a wide range of areas. It extends beyond the regulation of interstate commerce to anything that would substantially affect interstate commerce, she said.

Kagan declined to venture deeper into the hypothetical. But she did add a piece of relevant advice to the room full of lawmakers: “The principle protector against bad laws is the political branches themselves.”

'I have no plan, purpose, agenda'

The solicitor general was also asked her views on a series of controversial 5-to-4 decisions by the high court in the area of federalism. In answer, she told a Republican senator: “The three cases are settled law. I have no plan, purpose, agenda … anything to mess with them.”

Not all of the exchanges were heated or even probing. Sen. Dianne Feinstein (D) of California took a moment to reflect on the woman sitting before the committee.

“You have a wonderful, well-ordered mind,” Senator Feinstein told Kagan. “I have watched you, and I think your knowledge of the law and your ability to order your answers is really very impressive. I just want you to know that.”

The California Democrat then recognized that Kagan had broken through two significant glass ceilings as the first woman to serve as dean of the Harvard Law School and as the first woman to serve as solicitor general.

“You are a wonderful role model for women,” Feinstein said. “You do us all well.”

Related:

At hearings, Elena Kagan defends approach to military recruiting

Why Republicans are treading lightly in Elena Kagan hearings

How Elena Kagan worked to limit military recruiting at Harvard

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