[Accord. This is a bit better than the "she's so charming," let me stereotype the Republicans more than they do themselves analysis shown by Dahlia Lithwick. Like last year, she has a vacuous snarky shtick thing going here that doesn't appeal. See, Slate for the links.]
Usually, in a confirmation hearing for a Supreme Court nominee, the discussion of the Second Amendment comes down to a debate over whether the amendment guarantees an individual or collective the right to bear arms. One might think the matter was settled in Congress since Supreme Court rulings in Heller and McDonald leave the individual right to bear arms, as Elena Kagan said earlier today, "settled law." However, having a settled constitutional question left Sen. Charles Grassley (R-IA) with an opening to question whether the right to bear arms come from more than just the constitution. He wanted to know, in fact, whether it came straight from God.
Keith Olbermann ridiculed this too. As with his guest Jonathan Turley saying Justice Marshall really couldn't be deemed an "activist" justice (come on!), this suggests a lack of basic understanding of what is being debated here. The idea -- which Grassley clearly referenced -- is that we have various "pre-existing" rights, rights not given by the government, but protected from their invasion. For instance, many would agree that your freedom to worship your God is such a right, not one "given" by the government, but existing by the nature of being human. Like the First Amendment, the right of self-defense of the Second can (and was -- that was why it wasn't originally incorporated; it was not a "privilege or immunity" of citizenship, but a pre-existing right) be deemed in the same category. These are rights endowed by nature and/or nature's God. A positivist would disagree, but it's a totally rational argument.
The last four Democrats (Whitehouse, Klobuchar, Kaufman and Franken) had their first round questioning. Whitehouse was upset about 5-4 rulings, no one reminding him that they weren't somehow an invention of the Roberts Court or that one way to stop them is having more votes in conservative rulings. He and the others (less so Klobuchar, who actually briefly referenced Kagan's academic writings on relatively minor points; again, she has some, but NONE of the senators really did any due diligence here ... Kagan is the one who brought up her writings on the Chevron Doctrine, for instance) had concerns about various rulings. This is okay up to a point, even if it did more to tell us about their views of the law and the Roberts Court than Kagan's views. Franken really went on and on there ... really, he should be careful talking about law as an amateur. We actually got a bit on that -- she's for strong stare decisis (workability, new facts and doctrinal change would affect this), especially for statutory cases. Clearly, we are stuck with Citizens United, I guess.
Also, some senators were concerned with punitive damages -- someone should reference Stevens voted in many cases to strike down them too. Sen. Hatch covers this in his second round and this too. Sessions has some more DADT harping, letting Kagan give an expansive reply on decisions by the SG and responding "okay, I'll look into that." Hatch and Feinstein allow her to talk about (nothing much) about speech (U.S. v. Stevens was the point of the question, but a chance to really cover her writings was avoided) and religion (thumbnail summary that is really vanilla, if perhaps helpful if you know nothing on the issue).
Grassley opens up for a somewhat more expansive discussion of Kelo (including its limited scope) and how states didn't have to take the power given by it. Not too helpful on her views, even though she says she agrees property rights are important, but helpful given the ruling is a favorite whipping boy for many people. She didn't want to talk about marriage being a state issue giving pending cases, so Loving v. Virginia et. al. note referenced. Again harps as he did with Sotomayor on a 1970 or so summary disposition dismissing a constitutional question to same sex marriage. Kagan notes summary dispositions, not just this one, do not seem to deserve the same weight as a fully argued case. Specter the only one really annoyed (or seriously so) her answers aren't substantive.
Kyl (mainly on this, same sex marriage rights [as SG candidate, she noted there was no such federal constitutional right] and the usual Republican specter of foreign law) and Graham actually have stronger questioning the second time around, maybe Graham wants to prove to his constituents he isn't totally a Kagan supporter. He does a respectable job underlining candidates are not totally fungible and that Kagan and Roberts/Alito once served political causes. Cornyn provides a Breyeresque quote (by Goodwin Liu) that says original understanding along with other things that should be used by judges and she in effect agrees with it. This includes evolving societal standards. [Cornyn doesn't like that, but Graham referenced Plessy v. Brown (experience/understanding and precedent changed, though text did not).*] He notes Liu thinks things like welfare benefits are protected by the Fourteenth Amendment, but elides past that some of them in his view would only be supplied by congressional action; the implication seemed to be that the courts would enforce some of them by themselves. It's a valid question, if asked in a slanted way, and more of that sort of thing should have been provided. He also does a decent job covering her Harvard/DADT policy, of course with his own p.o.v.
Whitehouse, who seemed a bit tired in the morning (they started 9 o'clock), returns to his theme that the Roberts Courts have various tells of a Court with an agenda. Coburn (as did a few others) rubs the Dems noses in the fact that Kagan supported Estrada. Concern for confidence in government and liberty ... doesn't reference those who gained rights in the last decades or how his party is one major reason the confidence went down. Also, people as a whole support health care reform, some wanted more of it. I respect his misplaced passion though. Klobuchar focuses on women and law. Franken brings up media consolidation / value of Internet speech and how antitrust cases etc. might have some First Amendment implications. Kagan largely begs off. Franken argues various Roberts cases were activist ... Graham had ridiculed the term, Kagan not wanting to admit of any justice that was one. Franken references Thurgood Marshall and justified judicial review as compared to illicit activism ... finally cites Carolene Products Footnote Four. BTW, FN 3 and the case as a whole might scare some senators who referenced regulating vegetables. The ruling began:
The question for decision is whether the "Filled Milk Act" of Congress of March 4, 1923 (c. 262, 42 Stat. 1486, 21 U.S.C. § 61-63), [n1] which prohibits the shipment in [p146] interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment.
During Grassley's second round, we find out that Kagan doesn't like "penumbras" but supports the result of Griswold via a more textual basis. But, Douglas' analysis is in fact argued that there was a textual basis. The right to privacy was necessary to fully protect various textually based rights. Saying that "liberty" is the test, which seems to be Kagan's position, is in no way less open-ended. Why Kagan felt this specific issue was okay to "grade" is unclear. Sessions sums up, basically saying "activist" means when judges interpret things wrongly and other than general disagreement with progressive activism, Harvard's policy on military recruitment is what he remains most concerned about. And, soon it was over, followed by a closed door meeting to deal with the FBI investigation and such.
Witnesses late tomorrow.
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* Liu co-authored Keeping Faith With The Constitution, which reaffirmed this conclusion. Prof. Dorf also recently noted:
Of course, opting to follow such a course would come with a different kind of cost. It would be a tacit admission that Justice Stevens was right in his parting blow: Incorporation, no less than freestanding substantive due process, requires the exercise of value-laden judgment.
Throughout his distinguished judicial career, Justice Stevens acknowledged this inevitability--the inevitable role of judgment in constitutional interpretation. Unfortunately, the Senators who are now most aggressively questioning the woman who would take Stevens's seat are demanding that Solicitor General Kagan renounce the very candor that was central to this well-respected Justice's judicial philosophy.
A citation to Justice Souter's recent commencement address also can be provided.