The Kagan hearings have been notable for their relative lack of significant controversy.
The solicitor general and former dean of Harvard Law School again faced repeated, close questioning about her decision in late 2004 to bar military recruiters from the law school’s office of career services in what her critics say was defiance of the Solomon Amendment.
She has sought to reassure the senators that she does not harbor a secret agenda to push the court in one direction or another. And she has spent hours in the now familiar dance of high court nominees – the side-step shuffle – choosing her words carefully, saying just enough about her view of constitutional law to demonstrate understanding without telegraphing how she might vote in a future case.
Democrats attack some Roberts court decisions
The hearings have also been used by the Democratic majority as a platform to attack certain decisions by the Supreme Court under Chief Justice John Roberts. Democratic critics maintain the high court engaged in conservative judicial activism when it struck down part of a campaign finance law earlier this year. It was also the first case Kagan argued before the high court as solicitor general.
On Wednesday, several Republican senators pressed Kagan on the military recruiting issue at Harvard. Sens. Jeff Sessions of Alabama and Orrin Hatch of Utah objected to her testimony on Tuesday that “the military at all times during my deanship had full and good access” to Harvard students.
Senator Hatch said the student veterans group that reluctantly agreed to help military recruiters had a “tiny budget and no office space.” He added: “All they could do is establish an e-mail account.”
Hatch asked: “Is this what you referred to yesterday as full and complete access to our students and an equal substitute to the office of career services?”
'Reasonable people can disagree'
“I appreciate that reasonable people can disagree,” Kagan said. “But the military … had excellent access to our students.”
“I was trying on one hand to ensure military recruiting, and on the other, defending the school’s long-standing antidiscrimination policy,” Kagan said. “I had an institutional responsibility.” (She was speaking of the conflict between Harvard’s antidiscrimination policy and the US military’s “don’t ask, don’t tell” policy barring gay men and lesbians from openly serving in uniform.)
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.
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.”
“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.”