Kyl, Feinstein Parry on Court Pick Kagan

(CBS)  Updated 2:49 p.m. ET

Solicitor General Elena Kagan's nomination to the Supreme Court by President Obama has been met with mixed reactions - praise by many Democrats and criticism by many Republicans, with much discussion over her position on terrorism.

Former House Speaker Newt Gingrich has already spoken out strongly against Kagan. On Sunday the Republican said that, with the United States fighting two wars, there was no place for an "anti-military" Justice on the Supreme Court.

On CBS' "Face the Nation" this morning, Sen. Dianne Feinstein (D-Calif.) called Gingrich's contention that Kagan is anti-military "nonsense."

"I think it's Gingrich hyperbole. I hope no one would fall for that," she told anchor Bob Schieffer.

Also appearing on the program was another member of the Senate Judiciary Committee, John Kyl (R-Ariz.), who said he didn't know whether Kagan was anti-military, but that her experience as Dean of Harvard Law School criticizing the military's "Don't Ask, Don't Tell" policy would come up in the confirmation hearings.

One problem Kyl has with Kagan is her position on terrorism. He said that in 2005 he and Sen. Lindsey Graham (R-S.C.) drafted a law in which terrorists were deemed "enemy combatants" and that Kagan opposed the bill (which was eventually passed).

Reading from notes he had with him, Kyl said, "She compared our bill to the 'fundamentally lawless actions of dictators.'

"Now, that's not very judicious, and I don't know whether she would recuse herself from cases that involved those kinds of questions, but it is certainly a question that I'm going to have to ask her: Can she lay those political views aside when she deals with a case concerning terrorists?"

When asked what Feinstein thought of Kyl's concerns, she said, "I'm not aware of this, so I've got to look into it much more deeply."

Feinstein added, "I don't happen to support the "Don't Ask, Don't Tell" policy. That doesn't mean I'm 'anti-military.'"

Citing Kagan's credentials, Feinstein said, "This is an inordinately qualified woman. [I]t's not easy to be summa cum laude from Yale, go to Oxford, be summa cum laude when you get your law degree from Harvard, be professor of law at the University of Chicago, dean of the Harvard School, adviser to the president, and the top lawyer for the government before the Supreme Court."

Kyl, who voted in favor of Kagan for her current position as Solicitor General, said that vote does not necessarily mean he'll vote for her confirmation as a Supreme Court Justice.

"We have an obligation as Senators to do our due diligence, to find out all we can about her background, because once she's confirmed to the court, if she is, there's no appeal from her decisions. She is the last word," he said.

He cited her lack of experience as a judge as a reason it may be difficult for Kagan to do that. "[I]t's more difficult to know whether she is actually able to set her views aside," he said.

She explained that in the time she has spent with Kagan since her nomination, she found Kagan to be "a woman that was very down-to-earth, a woman that I think Americans would respond to extraordinarily positively."

She added, "I think what you see is a very mainstream thinking individual who has a warm personality, who has qualifications for the court. Now, when she wrote as an adviser to a president, she obviously provided advice that she thought was true and beneficial to that individual."

Turning to abortion rights, Schieffer asked Feinstein if a memo Kagan wrote as an advisor to President Clinton urging him to reject partial birth abortions was going to count against her in the eyes of abortion rights activists.

"I have looked at that memo," said Feinstein. "As a matter of fact, I showed it to her when she came in to meet with me, and essentially what there were were two amendments. One by Senator Daschle and one by someone by the name of Dianne Feinstein. And [Kagan] advised the president that she thought that the Daschle amendment was the one that the administration should support.

"It was a little bit tougher with respect to the definition of health of a woman, but it dealt with the health of a woman," said Feinstein. "And those of us who are pro-choice believe that Roe v. Wade's admonition that the health and life of the mother must be taken into consideration is important."

Ultimately, Clinton vetoed the partial birth abortion bill.

Kagan has called Supreme Court confirmation hearings vapid and hollow. Kyl said that because of that statement, some Senators may try to make the hearings more substantive based on Kagan's own criticism of them. But he said that Kagan would be wise to make her answers more general.

"You should never answer a Senator's question about how you're going to decide a case," he said. "Because the case is not yet before you and you don't know all of the facts and the law. And that's what gets back to the question of lack of judicial experience. We just don't have any way really of judging whether she can lay her views aside and decide cases just based on the facts and law."

Kyl has spoken openly of his concern about Kagan's lack of experience on the bench. He stopped short of comparing Kagan to Harriet Miers, who was nominated by President George W. Bush, saying, "We were all trying to be rather judicious about [Miers' nomination], but you will note that her nomination was withdrawn, and there were reasons for that."

Finally, Schieffer asked if Republicans were likely to filibuster Kagan's nomination.

"I don't think so," Kyl said. "The filibuster should be relegated to the extreme circumstances, and I don't think Elena Kagan represents that."

[boatdocster]

Reading from notes he had with him, Kyl said, "She compared our bill to the 'fundamentally lawless actions of dictators.'

Lets see - taken from the field, held indefinitely in small prisons with no access to legal rights, no access to a lawyer, allowed to be convicted by "hearsay evidence", no filed charges, and no hope of being freed if you are innocent.

Gee Mr. Kyl, that sounds very much like the actions of lawless dictators that the GOP always screams about when they want to pull the Human Rights card.

Oh, I'm sorry - we were talking about George "Litl Shrub" Bush and Dickless Cheney. Lawless dictators indeed!

[iwatchit]

Vapid and Hollow: Candidate or Congress?

A gauntlet has been thrown down, a supreme challenge has been made, and a duel to the death has been called for. Is this a World Wrestling Championship steel cage challenge, a Food-Network throw-down with Bobby Flay, or an Olympic grudge match between two life-long competitors? No, it?s the most recent Supreme Court nomination of Elena Kagan.
Kagan has written that the confirmation process has become a ?vapid and hollow charade? without value or substance. A position that I have to agree has become the modus operandi of the Congressional confirmation process. An activity that is not only engaged in brazen political posturing for party-defined reasons but which is actively destructive to the interests of the American public.
The Republican Senator John Kyl of Arizona said that he was concerned about appointing someone to a life-time position on the court who had the absolute final word on issues brought before the court. I hope he understands that that is not true. He as a representative of the people is specifically authorized to put forth either appropriate law consistent with the Constitution to achieve the results that he believes are needed, or to even sponsor an Amendment to the Constitution. The Supreme Law of the Land is administered by the Supreme Court; but it is ultimately the Will of the People that determine what the Supreme Law of the Land is.
And was the challenge made by the Senate Judiciary Committee leadership? No, it was made, perhaps without expectation that it would become applicable to herself, by the nominee when she worked as a staff lawyer for the Judiciary Committee. So while not made by the people?s representative body that is charged with the responsibility for ?advise and consent? on the approval of Supreme Court justices, the challenge exists; but will it be accepted? Will Congress fulfill their responsibility? Will they do their duty to serve the interests of the people and our democratic and Constitutional principles in approving or rejecting the nominee? Or, will Congress put on another Party-centric, ideological, self-serving image-promoting farce where the measure of success will be the number of minutes of media coverage that individual Congressional members will receive? And will the media support this dismal display of vacuous content without attempting to exert itself enough to even comment on their own lack of insight into the lack of meaning or insight on the part of the politicians?
Perhaps we will be surprised this time. Perhaps, either the nominee, a member of Congress (or two), or both will step forward and do something meaningful; if for no other reason than to demonstrate to the American people (and even their colleagues) that they possess a sense of history, of responsibility, maybe even a degree of intellect or of understanding the essential role fulfilled by an independent judiciary.
For Congress? players in this theater, they (or their staff) would have to craft questions that are central to gaining an appreciation of what perspective the nominee has on the role and obligations of Supreme Court justices, on how they view and comprehend the rational, justifications, and basis of current law and current precedents and ruling of prior Supreme Court cases. Congress might even ask the nominee whether any decision by the Supreme Court could be anything but ?activist judicial? action.
For the nominee, she could engage both the public and Congress in her responses the Committee questions. First, besides responding to her inquisitors, she could talk to the media and the public as she is answering the questions being asked. Second, she could analyze and critique the quality of the questions in the manner in which she responds. She would of course want to do so in a polite and respectfully manner, even in cases where the questioner is unaware of their own lack of propriety in acting on behalf of the American public.
What America needs and deserves is a procedure and process which shows that the participants properly recognize their responsibility to the American people, to our Democratic principles, and to the spirit of governmental institutions that serve the rights and liberties of a freedom loving citizenry.

From now4yourconsideration.blogspot.com

[p_syrus]

There is NOTHING in the constitution which requires that a judge sitting on the supreme court have prior experience as a jurist.

[n.b. The constitution does NOT refer to members of the supreme court as justices. It's only reference is to that of "judges". That is an honorific borrowed from the British legal & class system.]

Kagan is not the first non-jurist nominated to scotus. Nor would she be the first non-jurist to serve on scotus should she be successful in her candidacy. Until her nomination much argument had been made in favor of the presence of a non-jurist among the current sitting panel of judges on the scotus.

For a non-jurist Kagan is among the most excellently qualified & demonstrably able individuals ever proposed to sit as an associate on the scotus. This raises the obvious question: why so much fuss?

Clearly, something is perceived to be at issue by her detractors, other than her obvious excellence & qualification for the post, which they otherwise would not care to be required to mention openly. Could that be the dreadful stench of blatant partisan politicking over a non-partisan public office wafting through the air?

[jgg000101]

you might want to read her thesis on socialism.

[afmcalax]

To jgg000101 - I did. Maybe you should actually READ THE WHOLE THING. You are just another Fox News idiot with a attention span of 15 seconds. Sound bite, sound bite, let's follow the sound bite. It is an excellent scholarly piece, presenting both sides of the arguement with intelligence and lack of bias. That it is intelligent, well rounded, well researched, and intellectual would mean Republicans do not really have the brain mass or the intellectual curiousity and openess to actually comprehend it. She researched the rise of the Socialist movement in America and documents many of its failings as to why it failed. She listed some of its strengths, which it actually does have, and many of its failings and why it did not take hold in American society. That she found some strengths in the socialistic ideal of citizens helping citizens is something I know Republicans find repulsive in their quest to create a small group of winners while relegating everyone else to poverty and destitution. History shows these types of 2 class societies always fail from corruption at the top and hatred from the bottom. Kagan has a brilliant mind, the Republican Party who has elevated Sarah Palin and Rush Limbaugh as their intellectual leaders would obviously have trouble comprehending her.

[southernvet]

She didn't even have to respond to Newt. Everyone with half a brain knows he's so full of himself it puts a brownish tint on everything he looks at.

[southernvet]

She didn't even have to respond to Newt. Everyone with half a brain knows he's so full of himself it puts a brownish tint on everything he looks at.

[funks2]

The Kagan story is really beginning to lose traction. Until the hearings, may I suggest an article that puts kagan's confirmation process in some historical pespective? Until the hearings, I doubt that there's going to be a smoking gun. It's at:


http://funks2.wordpress.com/2010/05/11/the-kagan-chronicles/