Today in Washington, D.C. - June 29, 2010 - Kagan's Contradictory Answers

The Senate today quickly considered and approved the nomination of General David Petraeus to command American forces in Afghanistan. They then resumed consideration of H.R. 5297, the Small Business Lending Fund Act.

Last night, Senate Majority Leader Harry Reid filed cloture yet again on the motion to concur in the House amendment to the Senate amendment to HR 4213, the so-called “tax extenders bill.” Unfortunately, just like all the previous Democrat offerings, this version once again adds to the debt, to the tune of $35 billion. Republicans have repeatedly offered to extend expiring tax credits and unemployment benefits without deficit spending, but Democrats have objected or voted it down every time.

Also yesterday, the Senate voted 66-33 to invoke cloture on the motion to proceed to the small business bill, H.R. 5297.

At 9 AM, the Senate Judiciary Committee resumed hearings on the nomination of Elena Kagan of Massachusetts to be Associate Justice of the Supreme Court. Today’s session will complete the first round of questions from senators and will begin the second round. If senators don’t use all their time, those who want it could get a third round of questions today.

During the first round of questioning of President Obama’s Supreme Court nominee Elena Kagan yesterday, she seemed to contradict several things she’d previously said. In fact, whole approach to her hearing yesterday went counter to her prior criticisms of Supreme Court confirmation hearings. As The New York Times writes today, “Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled, saying she now believed it would be inappropriate even to answer questions that might ‘provide some kind of hints’ about her views on matters of legal controversy.”  In 1995, Kagan complained, “Subsequent [Supreme Court] hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” But as the NYT noted, “Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents.”

But more troubling are her contradictions about her record. When Kagan was asked about her time in the Clinton administration, she described her job as, “I worked for President Bill Clinton and we tried to implement his policy views and objectives.” Yet notes she made on a memo in 1996 show that she called Clinton’s opposition to elective partial-birth abortion “a problem,” and worked to change his position.

Kagan’s well-documented and controversial actions denying full access for military recruiters to Harvard Law School, despite a law requiring such access, during her time as dean also came up yesterday. Kagan said, “[T]he military at all times during my deanship had full and good access.” But the day after an appeals court declared the law unconstitutional, The New York Times said, “Ms. Kagan — and several other law school deans — barred military recruiters from their campuses.” Kagan only relented when the Pentagon threatened to withhold “all possible funds” from the school if the ban continued. Meanwhile, the Army told Pentagon leaders it was “stonewalled at Harvard,” and the Air Force’s JAG recruiting chief wrote at the time, “[D]enying access to the Career Services Office is tantamount to chaining and locking the front door of the law school – as it has the same impact on our recruiting efforts.”

Kagan also seemed to have trouble deciding how to describe her personal politics. When Ranking Republican Sen. Jeff Sessions (R-AL) asked Kagan if she agreed with former White House Counsel Greg Craig’s description of her as “largely a progressive in the mold of Obama himself,” Kagan responded, “I’m not quite sure how I would characterize my politics.” But later in the day, when Sen. Lindsey Graham (R-SC) asked her, “Would you consider them -- your political views progressive?,” Kagan finally acknowledged, “My political views are generally progressive.” As Senate Republican Leader Mitch McConnell said Monday, “[T]he question before us, though, is whether Ms. Kagan’s political views would be more or less constrained by the Constitution she swears to uphold once she reaches her goal.”

Elena Kagan needs to better explain some aspects of her record, including how she’ll set aside her years of political advocacy, and her troubling arguments in the Citizens United case.

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