Some observations from this morning's session of the Elena Kagan hearing; in particular, exchanges with Democratic Senator Amy Klobuchar:
1-During Klobuchar's questioning about recent Supreme Court criminal decisions, Kagan noted that Justice Scalia has ruled in favor of criminal defendants in the Confrontation Clause context. Kagan praised Scalia's "great" example of judging an issue based on law, not on any personal preference for the litigant. Klobuchar, a former prosecutor, was criticizing the recent Court decisions as complicating prosecutions, certainly not inviting praise about Justice Scalia. In that sense, Kagan seemed to throw and hit her own softball.
2-Klobuchar did throw a softball Kagan's way as to Chief Justice Roberts. But, again, the result was curious. Roberts' now-famous analogy about judges being umpires has been a drumbeat for Democrats during the Kagan hearings and Klobuchar asked Kagan about it. Kagan began by calling the analogy "correct in several important respects," as well as "apt," and giving examples (e.g., umpires should be unbiased). She softened her negative comments (e.g., judging is not robotic or simple), by noting that "all metaphors" have limitations.
3-Why was Kagan so quick to praise Scalia and give Roberts an escape hatch? Practically speaking, Scalia and Roberts are likely to be her colleagues soon (Roberts, possibly for decades, as Kagan and Roberts are both in their fifties). More generally, perhaps this is the type of approach that has generated respect and support from conservatives like Miguel Estrada, Charles Fried, and Ken Starr? And strategically, the type of approach that may help her now with Republicans?
4-Klobuchar also worked in a reference to the new Twilight movie, asking Kagan about the Edward v. Jacob question. Ugh, but at least the hearings got some play on Access Hollywood tonight.
