SCOTUS Hearings Live Blog: Elena Kagan Day 2

Supreme Court nominee Elena Kagan gestures while making her opening statement on Capitol Hill in Washington, Monday, June 28, 2010, during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Monday June 28, 2010. (AP Photo/Susan Walsh) Susan Walsh

CBS
Supreme Court nominee Elena Kagan today will begin to take questions from members of the Senate Judiciary Committee, on Day 2 of her confirmation hearings.

Each senator today gets 30 minutes to question Kagan, during which they're likely to press the nominee on the issues mentioned in their opening statements yesterday. Namely, Democrats will question Kagan on recent Supreme Court cases that favored corporations, such as Citizens United, while Republicans will question whether she intends to use a seat on the Court to advance a political agenda that suits her views.

Stay here to read the latest updates on the hearing.

Watch the Hearing Live
Pictures: Kagan Confirmation Hearings
Live Blog Day 1
Kagan Vows "Evenhandedness and Impartiality"
Washington Unplugged: Sessions Calls Out Kagan's "Personal Agenda"
Special Report: Elena Kagan

7 p.m.:: Leahy adjourns the hearings for the day.

6:55:: Cardin asks Kagan about the federal government's authority to enact environmental laws to which Kagan replies the government has "broad authority" to do so.

The senator then said that Congress intends to pass legislation to prohibit discrimination in the workplace based on sexual preference. He said he anticipates a legal challenge to the measure.

"Will you give deference to Congress as we try to create a more perfect union?" Cardin asked.

Kagan said the question of policy is up to Congress but that if there are statutory questions, the question the Court will answer is what Congress intended.

6:40: Sen. Ben Cardin (D-Md.) asks Kagan how she believes the framers intended for the Constitution to protect people against the abuses of government or special interests.

Kagan called the Constitution a "genius document," noting that certain provisions are very specific while others are general "to ensure the principles the framers' held so dear... would continue to apply throughout the ages."

Cardin said that the Supreme Court "chipped away" at the protections granted by Brown v. Board with a 2007 decision pitting Seattle parents vs. a school district, in which the Court struck down voluntary integration programs. He asked Kagan if decisions like Brown are still relevant.

"I hope and know that Brown and principles therein are still relevant," she said.

6:20: Coburn asks Kagan how she would assure Americans that she would not be a biased judge.

"I would hope they would listen to this hearing and come away with that view," she said.

Kagan said she would judge the way she has approached her life, "in a fashion that's respectful and temperate."

Coburn then put forward a hypothetical, asking whether it would be constitutional to enact a law requiring all Americans to eat three fruits and three vegetables every day.

"It sounds like a dumb law," said Kagan, who appears to be growing weary after a long day.

Coburn, clearly referring to health care reform, quips, "I've got a similar law I think is dumb, I'm not going to mention it."

Kagan quickly responds that it's not the Court's business to decide whether it's a dumb law.

"Courts would be wrong to strike down laws they think are senseless just because they're senseless," she said.

6:15: Sen. Tom Coburn (R-Okla.) says he is "troubled" by Kagan's statements on precedent. "Is precedent more important than original intent?" he asks.

Kagan gives the example of applying the First Amendment to libel cases. The framers' "would never have dreamed about it" being used in such a manner, Kagan said, but "the Court sensibly thought" that the principles embodied in the First Amendment could not be upheld unless applied to those cases.

Coburn presses Kagan on the notion that the Court would have to subjectively judge the value of the framers' intent if they value precedent over original intent.

"I don't disagree with you that judging requires judgment," Kagan said.

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5:55: Durbin notes that Kagan, along with other law deans, penned a letter while Hamdan v. Rumsfeld was pending, telling Congress that the adjudications made by military commissions ought to be reviewed by Article Three courts. Hamdan eventually ruled that military commissions used to try Guantanamo detainees violated Article Three of the Geneva conventions.

Kagan noted that after the letter was sent, Congress re-drafted an amendment dealing with the issue so that it included Article Three review. She called it an "extraordinary act of bipartisanship."

5:40: Durbin asks Kagan about her views on the death penalty. Kagan answers that it is "generally established law."

"I do believe the constitutionality of the death penalty is settled precedent going forward," she said. She voluntarily added that she has said before that she has no "moral qualms" on the issue.

5:35: Sen. Dick Durbin (D-Ill.) asks Kagan about her views in the disparity in sentencing laws with respect to powder cocaine and crack cocaine. He noted that African Americans are incarcerated at nearly 6 times the rate of white Americans and said crack laws part of the reason for racial disparity.

As part of the Clinton administration, Kagan advocated for trying to reduce the disparity to a 10-to-one ratio.

"Some of us felt it might go down even further but that 10-to-one was the practical approach to take, that it was conceivable," Kagan said.

Ultimately, Kagan said the issue was "quintessentially" a matter for Congress and not the courts.

5:25: On the issue of gun rights, Cornyn says he is troubled by Supreme Court Justice Sonia Sotomayor's position in the recent McDonald case. As part of the dissent, Sotomayor agreed that the Second Amendment does not protect the individual right to bear arms. Yet she said in her confirmation testimony last year, "I understand the individual right that the Supreme Court recognized in Heller."

Kagan assured for Cornyn that she understands, "McDonald and Heller is settled law."

5:20: Cornyn asks if the Supreme Court has lost its role in limiting the size of the federal government. He calls, as an example, the individual mandate in the new health care laws an "unprecedented reach" of federal law under the Commerce Clause.

"If Congress can force people sitting ontheir couch at home to purchase a product, it seems to me there is no limit to federal authority," Cornyn said.

Kagan responded, "I think the current state of the law is to give Congress broad deference in this area... but to have some limits."

Congress cannot regulate non-economic activities under the Commerce Clause, she said, but otherwise, "Congress has broad authority under the Commerce Cluase to act."

5:10: Cornyn questioned a statement from Kagan earlier about how Brown v. Board "changed" the Constitution. Kagan clarified that she doesn't think it "changed" the Constitution.

"Brown interpreted the Constitution in a different way than it had been interpreted before," she said.

She added, "The job of constitutional interpretation as a highly constrained one."

5 p.m.: Leahy resumes the hearing after a short break. Sen. John Cornyn (R-Texas) asks Kagan if she ever spoke out publicly on behalf of Miguel Estrada, her close friend who was nominated to be an appellate judge but was never confirmed.

Kagan said if she never wrote on behalf of Estrada, "it's because he never asked me to do so."

4:25: To make the point that Kagan does not necessarily agree with the viewpoints of former Israeli Judge Barak, Schumer points out that Kagan has also written glowing reviews about Seventh Circuit Court Judge Richard Posner, a conservative.

Kagan adds that one of the greatest introductions she has ever written was for Supreme Court Justice Antonin Scalia, "whom I in fact have the greatest admiration for," she said.

4:10: Sen. Chuck Schumer (D-N.Y.) asks Kagan to describe the challenges she face as dean of Harvard Law and what she learned from the experience.

Kagan said, "I learned you can never do too much listening to people."

Schumer then asked about cases in which a court decision seems to follow the law but does not work well on a practical level.

"If the text of a statute is clear, it would be wrong for a court to say, well the text says 'X' but I'm going to say, 'Y,'" Kagan said. "The legislative process is a messy thing... and legislative text is the result of all that deliberation and compromises" and the courts should respect that.

3:50: Graham begins a line of questioning related to national security. He asks if there are any provisions in domestic criminal law that allow the government to hold someone without trial. Kagan says there are not.

Graham points out that the administration is holding 48 people at the Guantanamo Bay prison without trial and asks if that is consistent with the administration's power under the law of war. He praises Kagan for representing the administration's position as solicitor general.

"In this area of your legal life you represent the United States well," he said.

Graham goes on to say that he fears that people will die unnecessarily if the war on terror is criminalized. He asks Kagan what she was doing on Christmas, clearly in reference to the "underwear bomber" failed bombing attempt.

"Like all Jews, I was probably at a Chinese restaurant," Kagan joked.

The "underwear bomber" case raised questions about the use of the "public safety exception" when it comes to reading suspects Miranda rights. Graham asks Kagan whether it would be good to give Congress more guidance in terms of when to use the public safety exception.

Kagan is hesitant to answer, saying "It's a question that might come before the Court in some guise."

3:40: Sen. Lindsey Graham (R-S.C.) questions Kagan about her relationship with Miguel Estrada. Kagan explains she sat next to Estrada in law school and have been good friends ever since. She called Estrada a "great lawyer."

Estrada wrote a letter endorsing Kagan's nomination, which Graham points out. He also points out that former President Bush appointed Estrada to the D.C. Circuit Court but that he was not confirmed. Graham asked Kagan if she would write a letter of endorsement for Estrada, to which she replied she would.

Graham said their endorsements of each other spoke well of both Estrada and Kagan.

Kagan agree with Graham's inquiry about whether she could be characterized as "progressive."

"I've been a Democrat all my life, I've worked for two Democratic presidents," she said. "That's what my political views are."

She said she would expect a Republican president to nominate conservative judges.

3:25: After Specter asked a fairly long-winded question regarding televising Supreme Court cases and what impact it would have, Kagan responded with a witty comeback.

"It means I'd have to get my hair done more often," she said. (Kagan already said in no uncertain terms she is in favor of cameras in the courtroom.)

The joke left Specter flustered for a moment as spectators in the hearing room laughed, but Specter eventually replied, "Let me commend you on that last comment."

"You have shown a really admirable sense of humor," he said. "We're looking for someone who can moderate the Court, and a little humor would do them a lot of good."

Elena Kagan
AP

3:15: Specter continues to try and get Kagan to make judgments on the Supreme Court's decisions that Kagan will not make. He asks whether Citizens United was a "jolt to the system."

Kagan prefaced her answer by saying she is approaching her response as an "advocate" for the Obama administration's position, since she argued the administration's case as solicitor general.

Specter pushed her to give her personal views, but Kagan said, "It's a little bit difficult to take off the advocate's hat and put on the judge's hat."

She said it was notable that she acknowledges the difference.

"It's a different role and it's a different thought process than the role one would use as a judge," she said.

3 p.m.: Sen. Arlen Specter (D-Penn.) presses Kagan on a line of questioning she refuses to answer about whether the Citizens United decision was disrespectful of Congress.

Kagan said she didn't want to characterize what the Supreme Court did but remarked she would show "great deference" to Congress, as well as to congressional fact finding since courts cannot conduct their own fact finding.

2:55: Grassley moves on to say he is troubled by Kagan's admiration of former Israeli Chief Justice Aharon Barak, who he (like others) characterized as an "activist."

Kagan said she considers Barak a hero because of his role in Israel's history. "The state of Israel has meant a lot to me and my family," Kagan said, noting she is Jewish.

2:50: Citing Kagan's Oxford thesis, Grassley asks if she thinks it is appropriate for judges to "steer the law"

Kagan asked the senator to dismiss what she wrote in her thesis, given that she wrote it before attending law school.

"I might have been interested [in law], but I didn't know much about the subject at the time," she said. "I would ask you to recognize that I didn't know a whole lot of law then."

Grassley said to laughter, "If I accept your answer, it's going to spoil a whole five minutes that I had planned."

2:40: Grassley critically asked Kagan why, as dean of Harvard Law, she required students to take an international law class but not a constitutional law class.

"Which is more important our Constitution, or other nation's?" he asked.

Kagan replied that the school considered adding more constitutional law to the first-year curriculum, but that constitutional law classes are offered in the second and third year, during which they can be studied more broadly. Constitutional law, she said, is "absolutely basic."

2:35: Grassley asks Kagan whether she personally believes the right to bear arms is a collective or individual right.

Kagan said that the Supreme Court decided this in Heller and McDonald, the gun rights cases recently taken up.

"I have absolutely no reason to think the Court's analysis was incorrect in any way," she said. "The [McDonald] case is based so much on history, which I've never had the occasion to look at."

When asked if the right to bear arms is a "fundamental right," Kagan said that is what the Court has decided, and it is "good precedent going forward."

2:30: Sen. Chuck Grassley (R-Iowa) resumes the questioning by asking Kagan what attitude and views she'll bring to the Supreme Court.

Kagan says she will be guided by her approach to constitutional interpretation. She said she doesn't have a "grand theory" to follow but is more "pragmatic."

Kagan said depending on the issue, a judge should "look to text, to history, to traditions, to precedent certainly, and the principles embodied in that precedent" to decide a case.

1:20: Sen. Amy Klobuchar (D-Minn.) tells CBS News' Jan Crawford on "Washington Unplugged" that she's impressed by Kagan's "ability to handle any question and point to any case" in today's hearings.

Klobuchar said Kagan was "pretty forthright about her feelings" regarding the Citizens United case, since she argued it before the Supreme Court, and has shown impressive "bluntness" today.

A particularly touching moment, Klobuchar said, was when Kagan revealed that the only moment during this nomination process in which she has teared up was after reading an op-ed from a Harvard student who was also a veteran, vouching for Kagan's commitment to the military and to her students.

1:10: Watch Washington Unplugged now! Stay here in the live blog for highlights from the show.

12:55: Feingold asked Kagan if there are any constitutional concerns regarding the trend of presidents appointing "czars" that do not need to be confirmed by the Senate.

Kagan said there are "important considerations" on this issue but that it would be best for the executive and legislative branches to work out their differences themselves, with judicial intervention as a last resort.

The hearing is breaking for lunch.

Senate Judiciary Committee member Sen. Al Franken, D-Minn., sketches Sen. Jeff Sessions, R-Ala., the committee's ranking Republican, on Capitol Hill in Washington, Tuesday, June 29, 2010, during the committee's confirmation hearing for Supreme Court nominee Elena Kagan.
(AP Photo/Alex Brandon)

12:45: Feingold asks Kagan how a Supreme Court Justice should determine whether a law infringes on Second Amendment rights in light of the recent gun-related cases.

Kagan said that it's an issue the Court will soon have to take up: "Going fowrad the Supreme Court will need to decide what level of scrutiny to apply to gun restrictions," she said. "The Heller decision clearly does say that nothing in it is meant to suggest the unconstitutionality of longstanding kinds of regulation."

Feingold also asked about criticism that Kagan has approached election law as a "political operative," such as in her arguments in the Citizens United case as solicitor general.

"My experience in the White House is valuable because it taught me to respect the other branches of government," Kagan responded. "I don't think that courts are all there is in the government. The president and Congress should be making most of the decisions in this country."

12:35: On the issue of executive power, Kagan said she could not rule out a case in which the president could authorize the violation of federal laws. However, she said she could think of no examples offhand, and it would be "a highly, highly unusual circumstance."

Sen. Russ Feingold (D-Wisc.) also asked Kagan about why in a 2007 speech to students, Kagan spoke about the incident in which then-Attorney General John Ashcroft was pressured while in a hospital bed to authorize a classified surveillance program.

Kagan responded that she tries to tell graduating students stories that will resonate and give important lessons. She said Ashcroft in that case was "taking a very principled stand," and that his actions were "very notable."

12:25: Kyl asked Kagan why as solicitor general she asked the Supreme Court to review a law in Arizona requiring employers to participate in the e-Verify program to verify workers' Social Security numbers.

Kagan responded that the statute was pre-empted by Congress. Additionally, she said, "Because there's so much legislative activity in this area right now, [it was] one of those moments where the issue is of real significance."

12:15: Check out this post from Sarah Dutton, CBS News director of surveys, about public perception of Supreme Court nominees:

Supreme Court Nominees Are Unknown to Many Americans

12:05: : Kyl asks Kagan if she agrees with President Obama's past statements that it takes some "heart" for a Supreme Court Justice to come to a decision.

"I think it's law all the way down," Kagan responded. "The question is not do you like this party, do you favor this party, do you like this cause, do you favor this cause?"

In response to a question from Kyl about the notion that Citizens United fails to favor the "little guys," Kagan said, "I think courts have to be level playing fields."

"They do provide that level playing field in all circumstances, even when that level playing field is not provided by other branches of government," she said.

Kyl continued on this line of questioning, referencing what Kagan has written about Justice Thurgood Marshall's views.

"I don't want to spend a whole lot of time exactly to what Justice Marshall would have said," Kagan said. "I love Justice Marshall, but if you'll confirm me, you'll get Justice Kagan, not Justice Marshall."

11:55: Sen. Jon Kyl (R-Ariz.) begins his questions by remarking on how few senators are seated.

"You can see how important my colleagues think my questions are," he said.

"Or how important my answers," quipped Kagan, who has elicited laughter a few times so far today.

11:40: Feinstein wraps up her questions and the committee breaks for 10 minutes.

11:20: Feinstein asks Kagan about the scope of the president's authority to detain individuals under hte law of armed conflict. Kagan speaks to the existing precedent and says she helped developed some policy on this issue advocating a concept of "enemy beligerent," which refers to someone who joins or significantly supports al Qaeda.

Feinstein asks when when the president is allowed to act without congressional authority.

"Circumstances where the president can act despite Congress are few and far between," Kagan said. They're not nonexistent, she continued, but said, "for the most part, the presumption is if told by Congress he can't do something, the president can't do something."

Asked about when the government may hold citizens without a criminal trial if they are suspected of terrorist activities, Kagan evaded the question, relying on precedent and saying the Court has left open whether detention authority might exist in the case of a suspect captured on U.S. soil.

11:15: Changing to the subject of abortion, Feinstein asks, "Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?"

Kagan responds, "With respect to abortion generally... I think that the continuing holdings of the Court are that the women's life and the women's health must be protected in any abortion regulation."

Elena Kagan
AP

11:10: Sen. Dianne Feinstein (D-Calif.) expressed great concern about the Supreme Court's recent decisions regarding gun laws. She said the decisions regarding laws in both the District of Columbia and more recently laws in Chicago threw out decades of precedent and subject state gun measures to an unfair legal test.

Kagan responded that the decisions set new precedent and that it's not enough to change precedent simply because a judge thinks it is wrong.

"You assume that it's right and it's valid going forward," she said.

11:05: Hatch asks Kagan on Citizens United, "Do you really believe that the Constitution allows the federal government this much power to pick and choose who may say what, how and when about the government?"

"I do think Citizens United is settled law going forward," Kagan responded. "I also want to make clear in any of my cases as an advocate... I'm approaching the cases as an advocate from a perspective first of the United States' government's interests."

Hatch blasted his Democratic colleagues for criticizing the Citizens United decision.

"I get a little tired of people on the left saying it was a terrible case," he said. "The Court listed at least 25 precedents dating back almost 75 years holding generally that the First Amendment protects corporate speech."

11 a.m.: Want to know more about the military recruiting controversy on Harvard's campus during Kagan's tenure as dean of the Law School? Check out this post from CBS News Chief Legal Correspondent Jan Crawford:

Kagan on Military Recruiting: Reality Check

10:50: Continuing on Citizens United, Kagan says that as solicitor general, she argued in defense of Congress' determination that the influence of corporations and unions unfairly influences elections and protects incumbents.

"All the empirical evidence suggests all these expenditures do protect incumbents," she said.

"Tell that to Blanche Lincoln," Hatch retorted, referring to the money labor unions spent trying to unseat Lincoln in a primary election. In spite of the money invested by unions to support her competitor, Lincoln won the primary.

10:45: Hatch asks Kagan if she believes Citizens United was wrongly decided.

"The first person I try to convince is myself," Kagan said, reflecting back on her arguments as solicitor general before the Supreme Court. "I did believe that we had a strong case. Tried to make it to the best of my ability."

As Hatch pressed Kagan on the issue, Leahy chided Hatch for his interrogation. Hatch responded with a light retort: "We have to have a little back and forth every once in a while, or this place would be boring as hell."

10:35: Citing a document written by Kagan during the Clinton administration regarding campaign finance law, Sen. Orrin Hatch (R-Utah) asks Kagan if she rejects the idea that spending is speech.

Kagan says the document represented the views of the administration and were simply talking points she wrote to advance the administration's goals, which did not represent her personal views.

10:30: On the issue of cameras in the Supreme Court, Kagan said, "I think it would be a terrific thing to have cameras in the courtroom. When you see what happens there it is an inspiring sight."

On the issue of the Supreme Court ruling on elections, such as Bush v. Gore, Kagan said, "The question of when the Court should get involved in election contests is one of some magnitude that might well come before the Court again... It is an important question and a difficult question about how an election contest that at least arguably the political branches can't find a way to resolve themselves, what should happen."

10:25: Kohl asks Kagan about anti-trust law, particularly Supreme Court cases that have changed the meaning of the Sherman Act.

"It does raise the question of what it takes to reverse a precedent," Kagan said, refusing to speak about specific cases. "I do recognize the concern... this question when you have precedent in the area, [but] new economic theory might suggest a different approach, how one balances those two things."

10:15:Kohl asks how the Senate should judge Kagan, given she does not have history as a judge like most other recent nominees.

"Look to my whole life," Kagan said. "Look to my scholarship, to my speeches, to my talks... I hope what they will show is a person who listens to all sides, who is fair, who is temperate, who has made good and balanced decisions."

Kohl asks Kagan about a 1995 law review article in which she wrote it would be a fair question to ask a Supreme Court nominee "in what direction will you move the Court?"

"All I can say is that I will try to decide each case" one at a time, Kagan responded. "I can't tell you I would move the court in a particular way."

Kohl asked why couldn't answer the question when she acknowledged in her article it was a fair question. Kagan gave a reply indicating it was a fair question without an answer.

Elena Kagan
AP
10:10: Kohl asks Kagan which cases she would like to see taken up in the Court. Rather than revealing any personal interests, Kagan responds by giving a short lesson on how the Court typically decides which cases to take up.

10 a.m.: Sen. Herb Kohl (D-Wisc.) serves up another softball, asking Kagan why she wants to be on the Supreme Court.

"It's an opportunity to serve," she said.

Kohl points to the passions of other left-leaning judges, such as Justice Thurgood Marshall's passion for civil rights and Justice Ruth Bader Ginsburg's passion for women's rights. He asks Kagan, "What are your passions?"

"I think I will take this one case at a time if I'm a judge," Kagan says. "I think it would not be right for a judge to come in and say, I have a passion for this and that, so I'm going to rule in a certain way with regard to that passion."

9:50: Sessions continues to excoriate Kagan for "treating the military in a second class way." He criticized her for speaking at a protest on campus just doors away from military recruiters.

"I do believe actions you took did create a climate that was not healthy to the military," Sessions said. He asked why she didn't complain to Congress, rather than the military, for policies with which she disagreed.

"All that I was trying to do was ensure Harvard Law School could also comply with its anti-discrimination policy" in addition to maintaining recruiting on campus, Kagan said.

She said military recruiting never went down on campus while she was dean.

9:45: Sessions begins questioning Kagan about the military recruitment controversy on Harvard's campus while she served as dean.

"The military had full access to our students at all times before I became dean and after," Kagan said, trying to explain the history of the situation.

Kagan clarifies, "I do oppose the don't ask don't tell policy, and I did then."

She said that as dean, she tried to make sure recruiters had access to students while also protecting the school's anti-discrimination policy as well as its gay students.

Sessions responded, "You couldn't do both, as it became clear as time went on."

Responding to a charge from Sessions that Harvard may have been out of compliance with the law in its change in military recruiting policy, Kagan said, "We were never out of compliance with the law."

"The only question was whether Harvard continued to remain eligible for federal funding," she said. "After DOD came to us and said... it wanted law schools to continue to do what they had been doing, we did change back, we did precisely what the DOD asked us to do."

9:40: Sessions pressed Kagan on whether she agrees with the characterization that she is a legal progressive. "I honestly don't know what that label means," Kagan said. She said that it is possible to glean something about her political views from the fact that she has served in two Democratic administrations but that her political views remain separate from her judging.

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9:30: Sen. Jeff Sessions (R-Ala.) asks Kagan if she agrees that a Supreme Court Judge is not entitled to alter the Constitution, saying that the progressive legal movement has sought to change the document.

"I do believe there are some out there who believe they can update the Constitution and say what they want it to say," he said.

He asked whether Kagan would agree with the characterization of Greg Craig, former chief counsel to President Obama, who said Kagan is largely a progressive in the mold of Obama himself.

"My politics would be, must be, have to be completely separate from my judging," Kagan said in response. "I agree with you to the extent that you're syaing judging is about the case that comes before you... and then considering how the law applies to their case. Not how your own personal views, own political views might suggest anything about the case."

9:25: Asked about the controversy of Kagan's opposition to military recruiters on campus while she served as dean of Harvard Law School, Kagan said military recruiters had access to students every single day she was there.

"The military should hve the best and brightest people it can," she said. "I said on many, many occasions that this was a great thing for our students to think about doing."

9:20: Leahy asks Kagan if the Supreme Court's ruling this week regarding gun rights leaves any doubt whether the Second Amendment gives Americans the right as individuals to bear arms.

"There is no doubt," Kagan said. "That is binding precedent entitled to all the respect of any binding precedent."

9:15: Leahy asks Kagan about cases from which she would recuse herself. Kagan said she wouldn't consider the about 10 cases on the Supreme Court docket for next year for which she served as counsel. In addition to that, she would recuse herself in any case in which she played a substantial role in the process, Kagan said.

9:10: Leahy asks Kagan about her views of the Constitution.

Kagan says that the founding fathers "wrote a Constitution for the ages," and "if we always remember that we'll do pretty well."

While some provisions in the Constitution are set in stone, such as the requirement that a person must be 30 years old to serve in the Senate, Kagan said others are open to some interpretation such as the Fourth Amendment, which demands no unreasonable search and seizures.

"They knew the world was going to change," Kagan said. "They didn't live with bomb sniffing dogs."

Elena Kagan
AP

9 a.m.: Committee Chairman Patrick Leahy (D-Vt.) kicks off the hearing with softball question for Kagan about the values her parents taught her.

Kagan said she had "loving, wonderful parents, but they were also people who worked hard for their communities."

She said she learned from them "the value of serving other people."

Kagan's father was a lawyer who often helped people in the community, while her mother was a well-loved teacher. She shared an anecdote about the numerous people who unexpectedly showed up at her mother's funeral some years back who turned out to be her former students.

8:55 a.m.: Day 1 kicked off with senators, in their opening statements, warning Kagan against the practice "judicial activism" -- but just what that meant depended on whether it was a Democratic or Republican senator was speaking.

Republicans criticized Kagan for naming so-called "judicial activists," such as former Supreme Court Justice Thurgood Marshall, for whom Kagan clerked, as some of her professional heroes. For instance, Sen. Jeff Sessions (R-Ala.), the top Republican on the committee, said Kagan "associated herself with well-known activist judges who have used their power to redefine the meaning of our Constitution and have the result of advancing that judge's preferred social policies."

Democrats, meanwhile, blasted the current Supreme Court for its own "judicial activism" in favor of corporations over citizens. Citing the Citizens United case, Sen. Dick Durbin (D-Ill.) said, "If that isn't judicial activism, what is?"

For her part, Kagan gave an openining statement indicating she thinks the Supreme Court should be deferential to the other branches of government.

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