"Wasn't it unusual how they got to the point where they can make that decision, based on the facts?" Sen. Russell Feingold pressed Kagan. "It was unusual wasn't it?"
Kagan, of course, defended the McCain-Feingold campaign finance reform law in the Court, in the case Citizens United v FEC.
Then the President teed up the issue in his January State of the Union address, when he took a shot at the Court, as he put it, overturning nearly 100 years of precedent and for allowing corporations to drown out the voices of everyday Americans. He warned it would also inject foreign corporate money into elections.
And that prompted that dramatic moment, when the cameras caught Justice Alito shaking his head and mouthing the words, "that's not true."
But Alito had a point that is still being missed - intentionally or not - by Democrats.
Kagan started to answer: When the text is clear, you look to the text, but...
And Franken cuts her off. Not once but twice.
But....But what? What's her answer? Does he even know what he's asking?
But wait...Kagan IS engaged. She blows off Franken's next question, to return to the IMPORTANT ONE, after asking permission to go back and answer. Franken graciously agrees.Continue »
Aside from a brief spark with Sen. Amy Klobuchar, who knows a lot about the law (former prosecutor/U of C Law School grad/Yale undergrad), the questions are flat, and Kagan is flat. Her tone isn't nearly as engaged, and she is slipping into lecturing law school professor mode (but a boring law professor, not a dynamic one).
And now here's Al Franken, trying to be really really serious, talking about Justice Kennedy and legislative history and seamen. Now THAT is funny.
I'm guessing things will pick up when the other Democrats show up, and the Republicans start their second round of questions. Otherwise, this entire room will be asleep by noon--and I'm including the nominee in that.
More from Jan Crawford:
Why is Al Franken on Judiciary?
Watching Kagan: Reality Check
Kagan on Military Recruiting: Reality Check
Kagan Supports Cameras in Supreme Court
Follow Jan Crawford on Twitter
Jan Crawford's Facebook Page
Washington Unplugged: How Did Kagan Do?
Pictures from the Conifirmation Hearing
CBSNews.com Special Report: Elena Kagan
Elena Kagan talks candidly about cameras in the Supreme Court--something most justices oppose and almost everyone assumes will never happen. Remember it was retired Justice David Souter who famously once said cameras would go in the courtroom when his dead body went out.
But Kagan clearly doesn't share that view. Sen. Herb Kohl asked for her views, and she was blunt.
"I think it would be a terrific thing to have cameras in the courtroom," she said. "When you see what happens there, it's an inspiring sight."
She said she could be persuaded otherwise by her colleagues, but she thought "it would be a great thing for the Court, and a great thing for the American people."
More from Jan Crawford:
But Kagan didn't roll over. She pushed back, saying she "revered the military" and that military recruiting did not go down on campus when she was dean. She said she opposed that policy then, and she opposes it today.
"I always tried to make sure the military had excellent access to our students," Kagan said.
At issue was a Harvard policy that prohibits employers who recruit on campus from discriminating in hiring based on, among other things, sexual orientation. Since that policy conflicted with "Don't Ask/Don't Tell," the military only got limited access to recruiting on Harvard's campus, as well as other campuses with the same policy.
In 1994, Congress passed the Solomon Amendment, which required schools that get federal funding to give military recruiters the same access as other employers.
Before Kagan became dean, Harvard amended its policy to allow military recruiters full access. But in 2004, when she was dean, a federal appeals court ruling struck down the Solomon Amendment.Continue »
They will defend her as an intellectual heavyweight who can build consensus. And the plan to make this hearing as much about the conservative Roberts Court, led by Chief Justice John Roberts, as Elena Kagan herself.
I'll be filing regular posts the next two days on the questions--and also on the Senators themselves. With the help of my researcher, Georgetown Law grad Tim Middleton, we're going to show you what some senators have said in past nominations, and how they're taking directly opposite positions now on issues like timing, document production, filibusters, etc.
We'll call this Reality Check.
Elena Kagan called the confirmation hearings a "charade" and a "farce" back in a 1995 law review article. But are the Senators helping fuel that narrative by making these hearings overtly political?
You may have seen a little bit of that on Sunday's Face the Nation, when Bob Schieffer and I pressed Sens. Patrick Leahy, the Committee's Chairman, and Jeff Sessions, the ranking Republican, for flipping their positions on the idea of a filibuster. Remember the Democrats efforts to filibuster Justice Samuel Alito after President Bush nominated him in 2005? And the Republican outcry?Continue »
Now, with opinion polls showing a weakened president and critical midterm elections looming -- and with a steady stream of documents from past jobs showing Kagan taking predictably liberal positions -- Republicans are poised for a fight.
Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said on Sunday's "Face the Nation" that Kagan has "serious deficiencies," citing her lack of judicial experience and her positions on a number of social issues.
It was the signature prosecution of an executive whose company became synonymous with corporate fraud and greed: Jeffrey Skilling, Enron CEO, disgraced, convicted and sentenced to 24 years in jail.
Today, the Supreme Court said the government went too far, in a landmark 9-0 decision that could unravel Skilling's conviction and spring him from jail, and is already reverberating well beyond his case. The justices, vacating part of his conviction, sharply scaled back a key tool prosecutors use to go after corporate executives and public officials.
In an opinion by Justice Ruth Bader Ginsburg, the Court said the government simply stretched an anti-fraud law too far when it prosecuted Skilling and others.
Skilling's lawyer, Dan Petrocelli, called the unanimous decision "an exhilarating victory" and predicted a lower court will be forced to dismiss all charges against his client. Petrocelli said he will immediately petition the appeals court to release Skilling on bond.
"It means Jeff Skilling has been vindicated, and it means he will soon be a free and innocent man," Petrocelli said.
The justices also vacated the convictions of newspaper baron Conrad Black and former Alaska legislator Bruce Weyhrauch, both of whom also were convicted under the anti-fraud statute, which requires employees, executives and public officials provide "honest services."
Miguel Estrada, Black's lawyer, said he will be asking for Black to be released on bond, as well. Estrada said today's decision gutted the government's prosecution against Black, and would mean "returning Conrad Black to freedom and to his family."
"I am ecstatic," Estrada said. "The Court has at long last placed significant limits on this abusive statute that has been misused by overeager prosecutors."Continue »
In an unusually harsh ruling, a federal judge this afternoon blocked the Obama administration's six-month ban on deepwater off shore drilling, slamming the government for relying on "incomprehensible" studies and making "factually incorrect" arguments that abused "reason (and) common sense."
The hard-hitting, 22-page opinion by Federal District Court Judge Martin Feldman said the government failed to show that the BP oil spill meant all other rigs were also in danger of failing. As such, he said, the moratorium simply went too far.
Feldman also skewered the administration for mischaracterizing the views of engineering experts in order to justify the moratorium.
Press Secretary Robert Gibbs said the administration would appeal Feldman's ruling to the New Orleans-based federal appeals court.
Feldman called the Deepwater Horizon oil spill "an unprecedented, sad, ugly and inhuman disaster," but noted it was only the fourth such incident worldwide in 41 years, and the first ever in the Gulf of Mexico.
"If some drilling equipment parts are flawed, is it rational to say all are? Are some airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines?" he wrote. "That sort of thinking seems heavy-handed and rather overbearing."
But he said the government, without justification, arbitrarily made the sweeping conclusion that "all Gulf deepwater drilling activities put us in a universal threat of irreparable harm."Continue »
While working as a domestic policy adviser to President Clinton, Elena Kagan emphatically agreed with a proposal to strongly defend affirmative action in the Supreme Court, while at the same time siding with a white teacher who was laid off instead of a black colleague solely because of her race.
"I think this is exactly the right position--as a legal matter, as a policy matter, and as a political matter," Kagan wrote by hand in the margin of a memo from then-Solicitor General Walter Dellinger about the controversial case, Piscataway Board of Education v. Taxman.
That posture -- strategic and careful -- is reflected throughout the 46,500 pages of documents contained in the Clinton Library and released on Friday. The documents represent about a third of the Kagan documents stored in the Library and cover her time as a deputy domestic policy adviser to President Clinton from 1997-1999.
In that role, she focused on issues ranging from tobacco negotiations and criminal law to abortion and gay rights, and she helped strategize on how best to further the President's policy agenda. Some of the documents, for example, reflect attempts to head off conservative efforts to pass a broad ban on so-called "partial-birth abortion" or to curtail abortions by minors without parental consent.Continue »
Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, has responded this morning to our report last night on Elena Kagan's legal memos while she was a law clerk to Justice Thurgood Marshall.
Sessions called the documents "troubling" and said they "have to be carefully examined" as part of her confirmation hearings.
The remarkably candid documents provide some insight on her approach in a number of controversial social issues, from abortion to gun rights. Kagan has previously kept her views close, so liberals are certain to be encouraged by the memos, which indicate she may not be the moderate some had characterized her to be.
But as Sessions' comments reflect, Republicans now have ammunition to use in the fight against her--and appear ready to use it.Continue »
Elena Kagan has kept her cards so close to the vest that in the days after President Obama nominated her to the Supreme Court, some on the left worried she was too moderate to replace liberal Justice John Paul Stevens.
But in documents obtained by CBS News, Kagan--while working as a law clerk to the late Justice Thurgood Marshall - made her positions clear on some of the nation's most contentious social issues.
The documents, buried in Marshall's papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.
They also provide a remarkably candid picture of her opinions, including on the most controversial issue Supreme Court nominees ever confront: abortion.
Although Kagan's confirmation has thus far been an all but foregone conclusion, sources say these documents will give Republicans a few cards of their own to mount a strong fight against her.
Jan Crawford hosted today's "Washington Unplugged" today which focused on Israel's raid of a flotilla trying to break its blockage of Gaza -- with guests Michael Oren, Israel's ambassador to the U.S., and Adam Shapiro of the Free Gaza Movement.
Watch the video below: