Saturday, July 3, 2010

Kagan Hearing #3 Afternoon/Evening: Thoughts

Some thoughts on the final questioning of Elena Kagan:

1-Citation of foreign law continued to be an issue, as it had been earlier in the hearings.  In short, opponents see a serious usurpation of authority from American law, while proponents see a red herring, since courts often cite non-binding sources, including law review articles.  Kagan's answers throughout the hearing indicated that she does not view foreign law as binding, but is not categorically opposed to citing it, with one exception.  Near the end of questioning, Kagan indicated to Senator Sessions (R-AL) that she opposes citing foreign law in the Second Amendment context, since the development of that issue is "peculiar" to our country.  See also previous post re: foreign law and the new Bluebook.

2-After riding a strange hobbyhorse the day before (link here, point three), Senator Cornyn (R-TX) made headway on another topic.  Kagan's approach at Harvard Law School, raised numerous times in the hearings, had been to allow military recruiters access to students through the school's veterans association, instead of the career services office used by other employers.  While Kagan was persuasive in defending this approach, Cornyn's characterization of it as "separate but equal" did make one stop and question.

3-Speaking of hobbyhorses, in an attempt to discredit the Roberts Court, Senator Whitehouse (D-RI) pushed a theory that 5-4 decisions are a "telltale" sign that justices are driven by "particular" agendas.  He made the same attempt in earlier questioning.  This Term, the Court decided 18% of its cases by 5-4 margins, compared with 46% unanimous decisions and another 25% with only 1-2 dissents, according to SCOTUSblog's preliminary statistics.  Put another way, the Court was very often in broad agreement, nearly half the time in complete agreement, and hardly characterized by 5-4 decisions.  Kagan also did not lend support.  "I assume," she said, "the good faith of everybody on the Court."

4-As a final note, the hearings ended much as they began, with Kagan's confirmation all but ensured.  The only thing Kagan needed to do was avoid major missteps—and she did.