What We've Learned About Elena Kagan

Guests

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune
Gloria Browne-Marshall, associate professor, City University of New York
John McGinnis, professor, Northwestern University

Wednesday marked Supreme Court nominee Elena Kagan's second day of answering questions from members of the Senate Judiciary Committee. So far, she's resisted making broad statements about most legal issues and declined to criticize the current court.

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NEAL CONAN, host:

This is an NPR News Special on the testimony of Supreme Court nominee Elena Kagan. I'm Neal Conan in Washington.

On Monday, opening statements from the members of the Senate Judiciary Committee, then from Solicitor General Kagan, President Obama's choice to replace Justice John Paul Stevens. Then, yesterday and today questions as Republican senators explored controversies in her background to try to elicit her judicial and constitutional philosophy, while Democrats posed generally friendlier questions. One of the themes was Elena Kagan's political beliefs, which she vowed to put aside.

Ms. ELENA KAGAN (U.S. Solicitor General; Nominee, U.S. Supreme Court): I would, if I'm fortunate enough to be confirmed, you know, put on that robe and be independent and not favor any political party.

CONAN: Over the course of this hour, we'll listen to excerpts from the testimonies, some of the exchanges between the nominee and the senators, hear what she had to say on the issues and we'll explore what we've learned about what kind of justice Elena Kagan might be. Our guide through the hearing is David Savage, who covers the Supreme Court for The Los Angeles Times and The Chicago Tribune. He joins us here in the studio in Washington. David, nice to have you with us.

Mr. DAVID SAVAGE (Correspondent, The Los Angeles Times, The Chicago Tribune): Hi, Neal.

CONAN: And many observers noted the comments Elena Kagan made on the confirmation process back in the 1980s where she wrote that what should be an invigorating exchange of views where nominees should proclaim their views has become, to use her word, vapid.

Mr. SAVAGE: Yes. I would say Elena Kagan did fine as far as a Supreme Court nominee. You know, so smart, articulate, understands law, has a sense of humor. But she would not have passed the Professor Elena Kagan test because she has not really told the senators much more than all the previous nominees that, as you said, she called it an air of vacuity and farce in the hearings because the nominees are expert in sort of talking around these - talking about the law but actually not telling the senators really what they believe.

CONAN: And as one of the Republican senators said, I think yesterday, she's dancing. She's dancing around the issues.

Mr. SAVAGE: Yes. And that's - I think everybody has decided as a Supreme Court nominee that that's what you need to get through the process. And there's also probably a good reason that you don't want to go up there as a nominee and say, here, Senator, here's what I think about all that five or six big issues. And here's how I'm going to decide cases because after all you're going out there to be an impartial judge or justice. You don't want to decide everything before you go to the court.

CONAN: And it has to be said, there's not a lot of drama attendant upon this particular confirmation hearing. She does not, never having been a judge, had a long paper trail of controversial rulings that people can challenge. There's not a lot of articles that she's written. There's not a lot of suspense about whether she's going to be confirmed.

Mr. SAVAGE: Yes, all that's great, Neal. And I think a lot of it is just mathematics, political mathematics. This will be, I think, six in a row going back to Ruth Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor and now Elena Kagan, where the president's nominee went to the Senate where his party had the majority in the Senate.

If you go back to Robert Bork and Clarence Thomas, the really contentious nominees, those were conservative Republican nominees in a Senate where the Democrats had the majority. That's when you get a real clash. I think the fact is that there were 58, 59 Democratic senators and a Democratic nominee. You sort of start with the proposition that unless the nominee really screws up or something really controversial comes out, that person is going to be confirmed.

CONAN: And going back in history, Haynesworth and Carswell back in the Nixon administration, a wounded president nominating people before a Democratic Senate and so they indeed had problems. Probably the most contentious issue to come up has been the decision that Elena Kagan made when she was dean of the Harvard Law School to uphold the university's policy of no discrimination. And she thought that applied to the question of Don't Ask, Don't Tell, the military's policy that excludes openly gay men and lesbian women from service in the military.

She restricted military recruiting on the campus at the law school. Of course, lawyers are recruited as well as other people. They want people to serve as judge advocates general in the military. And this was something that, as some Republicans said, stuck in their craw.

Here's an exchange between nominee Kagan and Senator Jeff Sessions, the ranking Republican from Alabama, going back and forth on the issue of whether or not military recruiters were allowed on campus when she was dean at Harvard.

Ms. KAGAN: I tried to make clear in everything I did how much I honored everybody who was associated with the military on the Harvard Law School campus. All that I was trying to do was to ensure that Harvard Law School could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country.

Senator JEFF SESSIONS (Republican, Alabama): Well, I would think that that's a legitimate concern and people can disagree about that, and I respect your view on that. What I'm having difficulty with is why you would take the steps of treating the military in a second-class way, to speak to rallies, to send out emails, to immediately, without legal basis because the Solomon Amendment was never at any time not enforced as a matter of law, why you would do all those things simply to deny what Congress required, that they have equal access as anyone else.

Ms. KAGAN: Senator, the military at all times during my deanship had full and good access. Military recruiting did not go down. Indeed, in a couple of years, including the year that you're particularly referring to, it went up.

CONAN: The Solomon Amendment, we should mention, was a law that said if military recruiters were precluded from a campus, they could not receive federal funding. And, David Savage, there was a question - excuse me - that Jeff Sessions had afterwards. He said he thought the nominee was less than rigorous in her answering about whether there was full access - less than rigorous is about as close as you're going to get to somebody saying that was a lie.

Mr. SAVAGE: Yes. I thought Senator Sessions and Elena Kagan have a different view on this, but I don't think Elena Kagan misstated either the law or the facts. The Solomon Amendment had been around a long time. It said, as you said, that you cannot - a law school or university cannot prohibit or prevent recruiters from coming on campus.

Harvard had maintained the position - and the Clinton administration was fine with this - is that as long as the military recruiters could come to the campus and interview students, that was good enough. After 9/11, the Bush administration changed its view and said, no, we're not going to accept this. They have to be able to use the career counseling center. So Harvard changed its policy, allowed the military to use the career counseling center.

Then in 2004, a federal appeals court struck down the Solomon Amendment as unconstitutional. After that, for several months, Elena Kagan said, okay, we're going to go back to our old policy of saying, you can come on campus but not use the center. So it's only that few months that's an issue. And then Harvard switched back again and allowed the military to use the career counseling center. So I think Elena Kagan is, I think, has good reason to say we never prevented military recruiters from coming to campus. We didn't think we were violating the Solomon Amendment. And when the Bush administration disagreed with us, we went back to the original - the full equal policy where they could use the career center.

CONAN: Another question is the old issue of the activist judge, and in this case, another justice was cited, and that is Thurgood Marshall, the first African member of the United States Supreme Court. Elena Kagan, as a young woman, clerked for Justice Marshall. And there were a lot of questions about whether she shared his activist views.

Ms. KAGAN: I guess I don't want to spend a whole lot of time trying to figure out exactly what Justice Marshall would have said with respect to any question because the most important thing - I loved Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you'll get Justice Kagan. You won't get Justice Marshall. And that's an important thing.

CONAN: And there was another twist to this conversation about Justice Marshall that came up in an exchange with Democrat Dick Durbin of Illinois, when he was asking nominee Kagan, Solicitor General Kagan, about another controversial issue: the death penalty.

Ms. KAGAN: I do think that the constitutionality of death penalty, generally, is settled precedent. I think even Justice Stevens agreed with that. He - in those comments that he made, he suggested that he did not think it was appropriate to do what Justice Brennan and Justice Marshall had done, which was to dissent in every death penalty case. And he thought that that was inappropriate because of the weight of the doctrine of precedent.

Senator DICK DURBIN (Democrat, Illinois): When you clerked for Justice Marshall, his views on the death penalty were well-known. And can you recall conversations with him on the subject when you were his clerk?

Ms. KAGAN: Well, they were well-known, and Justice Marshall's clerks had, as a kind of special responsibility, and Justice Brennan's clerks as well - clerks carry out the vision of the people whom - with - for whom they work. And Justice Marshall and Justice Brennan did believe that the death penalty was unconstitutional in all its applications, but more specifically, I think, viewed themselves as having a special role in each death penalty case to make sure that there were no special problems in the imposition of the death penalty, and if there were, to bring those problems to the attention of the rest of the court to make sure that those issues would not be missed or overlooked.

And the clerks for Justice Marshall and Justice Brennan - of whom I was one -that was a significant part of the job.

CONAN: Elena Kagan in an exchange with Senator Dick Durbin of Illinois. She earlier had also said that she had no moral qualms about imposing the death penalty.

And David Savage, this exchange about Thurgood Marshall, the first African-American justice, it's remarkable that someone who's a revered figure in both judicial and civil rights history comes up as a figure of controversy here.

Mr. SAVAGE: Yes. Thurgood Marshall had a tough confirmation hearing in 1967 when he went up to the Supreme Court. Some of the Southern Democrats gave him a very hard time. Who would think he'd be the center of another tough confirmation hearing all these years later?

This is one where the two parties have a very different view, I think. Most of the Democrats, I think, would share your view, that - as you said, is that Thurgood Marshall was one of the great lawyers of the 20th century, the person who played the lead role in ending official racial segregation in this country. A lot of the Republicans associate him with the activism of the Warren court and are willing to attach that label to Elena Kagan.

But as you notice, she nicely said, I'm going to be Justice Kagan, I'm not going to be Justice Thurgood Marshall.

CONAN: David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. More on the Supreme Court hearings for Elena Kagan in a moment, including issues from guns to abortion and some of the lighter moments of the hearings too. You're listening to testimony from the solicitor general of the United States. That's the government's lawyer, who goes up and argues cases. And, well, we'll hear about one of the cases she argued that involved campaign finance.

Stay with us. This is NPR News.

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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. An NPR News special: excerpts from the confirmation hearing of President Obama's pick to join the Supreme Court. Republicans and Democrats alike acknowledge that Solicitor General Kagan is likely to be confirmed for the court. Senators expect to wrap up their questions for the nominee late today, before moving on to other panels of witnesses.

As we've heard, Solicitor General Kagan has been careful to avoid revealing many of her views on specific issues. Republican Jeff Sessions, among others, complain that Kagan's careful answers make it difficult to determine what kind of judge she may be. More of her words in a moment.

David Savage is with us. He covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. One the issues that has come up is executive power and when the witnesses have the right to be told of their Miranda rights in the context of terrorism investigations. There was an exchange with Senator Lindsey Graham, the Republican from South Carolina, when he asked the nominee about Christmas Day. She assumed that he meant the investigation of the alleged Christmas Day bomber. That wasn't quite where he was going.

Senator LINDSEY GRAHAM (Republican, South Carolina): I just asked you where you were at on Christmas.

(Soundbite of laughter)

Ms. KAGAN: You know, like all Jews, I was probably at a Chinese restaurant.

(Soundbite of laughter)

Sen. GRAHAM: Great answer.

CONAN: The lighter moments of the hearing, and David Savage, I guess a nominee has to be very careful, but in two very long days of answering questions, you can't help for your personality to come out.

Mr. SAVAGE: Yeah. Elena Kagan has a very sharp sense of humor. (Unintelligible) sometimes - it is careful, being in the Supreme Court, not to make too many jokes and put the justices on the spot. But she's very quick with the comebacks.

CONAN: Getting back to some of the more serious issues, Senator Jeff Sessions pressed Kagan again on another topic, this about, well, her approach. He was trying to get her a definition of whether she would be in accord with his idea of what an Obama nominee would be.

Ms. KAGAN: Senator Sessions, it's absolutely the case that I have served in two Democratic administrations, and I think...

Sen. SESSIONS: No, but I'm asking, do you agree with the characterization that you are a legal progressive?

Ms. KAGAN: Senator Sessions, I honestly don't know what that label means. I've worked in two Democratic administrations. Senator Graham suggested yesterday, and I think he's right, that you can tell something about me and my political views from that. But as I suggested to you, that my political views are one thing and...

Sen. SESSIONS: Well, but I agree with you, exactly, that you're - you should not be condemned for a being a political believer and taking part in the process and having views. But I'm asking about his firm statement that you are a legal progressive, which means something. I think he knew what he was talking about. He's a skilled lawyer. He's been in the midst of the great debates of this country about law and politics, just as you have. And so I ask you again: Do you think that is a fair characterization of your views? Certainly you don't think he was attempting to embarrass you or hurt you in that process, do you?

Ms. KAGAN: I love my good friend Ron Klain, but I guess I think that people should be allowed to label themselves. And that's - you know, I don't know what that label means, and so I guess I'm not going to characterize it one way or the other.

CONAN: And why is it important, David Savage, for a nominee to avoid talking about whether - as she had mentioned, she'd been appointed by two Democratic presidents - that she's a liberal?

Mr. SAVAGE: Well, I suppose she doesn't want to go down the road of saying I'm a - I'm going to be a liberal on the bench and therefore I'm going to favor the liberal view on a whole series of issues: abortion, religion, whatever. I just assume she does not want to get into characterizing herself.

CONAN: Indeed, on some issues she seemed to go out of her way to warn some of the Democrats that she was not following all their views. She was asked by Dianne Feinstein of California about her views on the recent gun decision by the Supreme Court and said that she thought the recent rulings by the Roberts court on the Second Amendment made this settled law. And Senator Feinstein really wanted to talk to her about that.

Senator DIANNE FEINSTEIN (Democrat, California): Now, I want to just have a little heart-to-heart talk with you, if I might. I come at the subject...

Ms. KAGAN: Just you and me.

Sen. FEINSTEIN: Just you and me and nobody else.

(Soundbite of laughter)

Senator PATRICK LEAHY (Democrat, Vermont): Don't anybody in the room listen.

(Soundbite of laughter)

Sen. FEINSTEIN: I come at the subject of guns probably differently than most of my colleagues. I think I've seen too much. You know, I wrote the assault weapons legislation. I found the body of Harvey Milk. I became mayor as a product of assassination. I've watched as innocent after innocent has been killed, the latest of which in my state is, two weeks ago, a six-year-old in a Spider-Man costume eating an ice cream bar in the kitchen was killed by a bullet coming through the room.

CONAN: And that kind of profound experience that Senator Feinstein has been so much part of her makeup, well, this goes back to the issue, though, of settled law: Once decisions have been made, there is a precedent set. And she said this decision, like others, has to be given all the weight of precedent.

Mr. SAVAGE: Yes. She wants to say: I'm going to stand behind the precedent. I do think, going forward, that a Justice Kagan will have a lot to say as to what that precedent means. Because all the Supreme Court basically said was that the Second Amendment creates an individual right and it applies to city and state laws. They've really not said what that right entails, other than - they have said - a total ban on having a handgun at home is unconstitutional.

So my guess is that Elena Kagan is going to go to the court thinking: That's settled now. There is a right. It applies nationwide. But we haven't decided what the right means.

CONAN: And there's going to be a lot of litigation before that - those questions are settled.

Mr. SAVAGE: Correct. Correct.

CONAN: There was one - a couple of issues where she has been on the record. We heard earlier about her position on the death penalty, and she'd talked about that during her confirmation hearing to be solicitor general just - not more than a year ago. There was also the question of one of the cases that she argued as solicitor general on behalf of the Obama administration. This was the Citizens United case, where the Supreme Court voted against her, as it turns out. They voted to strike down most of the laws that prohibit corporate contributions to political campaigns. And the - Orrin Hatch, the senator from Utah - David?

Mr. SAVAGE: They would say independent spending by corporations - you can still forbid contributions. It's a strange distinction, Neal, but the law says you can't actually - you can forbid corporations giving money to, say, to Senator McCain's campaign. But corporations can go out and run ads on their own. And the justices think that's completely different.

CONAN: That's free speech, they say.

Mr. SAVAGE: That's free speech. Correct.

CONAN: All right. Here's Senator Hatch asking her about comments that she had been reported to make.

Senator ORRIN HATCH (Republican, Utah): I've seen media reports that in a meeting with at least one of your colleagues on this committee you said that you believed the Citizens United case was wrongly decided. Is that true?

Ms. KAGAN: Senator Hatch, I argued the case, of course. I walked up to the podium and I argued strenuously that the bill was constitutional, that...

Sen. HATCH: But I'm asking about your belief.

Ms. KAGAN: And over the course - at least for me, when I prepare a case for argument, the first person I convince is myself. Sometimes I'm the last person I convince. But the first person I convince is myself. And so, you know, I did believe that we had a strong case to make. I tried to make it to the best of my ability.

CONAN: And that, David Savage, is as close as, I guess, you're going to get to her saying: And I believe it was decided incorrectly.

Mr. SAVAGE: I think that's correct, that she thought the decision was wrong. She actually tried to narrow that - get the court to adopt a narrow view. Had they simply said that a nonprofit corporation can put money into the election arena, that wouldn't have caused a big deal. But the court took a small case involving a tiny nonprofit group that got a tiny amount of corporate money and used it to make a big statement, which was that all corporations, profit-making corporations - and presumably unions - can put any amount of money into election races. And that was a big deal, and I suspect she still thinks that was a mistake.

CONAN: And we will see if it comes back. Of course it's been settled now. It is precedent that that's been overturned. But she said it gets as much weight as any other precedent. And, of course, precedents have been overturned.

Mr. SAVAGE: Yes. It's hard to see how - it's hard to know how that's going to play out. But, yes, somewhere down the road it could be challenged and overturned again.

CONAN: One of the issues that she was pressed on - again, Senator Hatch of Utah was getting on her about this - was the issue of abortion, specifically the procedure that opponents call a partial-birth abortion. And here Senator Hatch wanted to know if she wrote one particular memo back in her days when she was a domestic policy advisor in the Clinton administration.

Sen. HATCH: Now, I'm really stunned by what appears to be a real politicization of science. The political objective of keeping partial-birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry and that they had - and they had concluded. Did you write that memo?

Ms. KAGAN: Senator, with respect, I don't think that that's what happened here.

Sen. HATCH: Well, I'm happy to have you clarify it. I don't - that's my question. Did you write that memo?

Ms. KAGAN: I'm sorry. The memo, which is?

Sen. HATCH: The memo that basically caused them to go back to the language medically necessary. That was the big issue to begin with.

Ms. KAGAN: Yes. Well, Ive seen the document and the document is...

Sen. HATCH: But did you write it, the memo?

Ms. KAGAN: The document is certainly in my handwriting.

CONAN: And, therefore, she concedes that she's the author of the memo. More broadly, David, she argued that I was a policy adviser in the Clinton administration, taking up the policies of that administration, indeed, as solicitor general in the Obama administration, arguing the policies of President Obama.

Mr. SAVAGE: Yes. I do think if you read a lot of the Clinton era memos, Elena Kagan's specialty was trying to find a middle ground position on a lot of really contentious issues. And President Clinton said - and Elena Kagan repeated it - that he wanted to support and sign a ban on partial birth abortions. He just wanted to leave open a narrow situation where the doctor would say, this procedure is necessary to save the life of this woman or to prevent a serious harm to her physical health. And that's the position they were arguing. Not that they wanted to endorse partial birth abortions, that they wanted to eliminate them with those exceptions. And there was this debate then back and forth between the medical experts as to whether this procedure really was needed, whether it was the only good procedure to do in a certain type of pregnancy.

CONAN: And it is - it does not mean - it does not suggest how she might vote in other cases on abortion. It's a very narrow part of the decision.

Mr. SAVAGE: No. She did say, as a general matter, she believed - and the court has said this before - is that the government in some situations can regulate abortion except when the life or the physical health of the woman is at stake. And she did endorse that general position, but that's the position of the court.

CONAN: We earlier heard reference to the decision on Don't Ask, Don't Tell, the military policy which she described - she says she continues to believe it is unwise and wrong. She was, then, asked today on another of the hot button issues about gay marriage - well, not quite in that context - by Senator Chuck Grassley, the Republican of Iowa.

Senator CHUCK GRASSLEY (Republican, Iowa): Marriage is a state issue. Do you believe that marriage is a question reserved for the state to decide? And I'm only seeking your opinion because I know there might be cases coming down the road. Do you believe that marriage is a question reserved for states to decide?

Ms. KAGAN: Senator Grassley, there is, of course, a case coming down the road and I want to be extremely careful about this question and not to in any way prejudge any case that might come before me.

Sen. GRASSLEY: That's your right.

CONAN: Any case that might come before her. David Savage, it does look like there's a case coming down the road.

Mr. SAVAGE: There certainly is from California. She was asked that question several different times. She said in her last hearing that there is no federal constitutional right to same sex marriage. She was asked about that by Senator Kyl. And I think what she was saying - and she repeated it - is there is, today, not a right to same sex marriage. She was not saying, I oppose any such right. She was saying, only the obvious, which is today, there is not such a right.

CONAN: David Savage, who covers the Supreme Court for The Chicago Tribune and The Los Angeles Times. You're listening to an NPR News Special.

I'm Neal Conan in Washington. David, she was asked several times about the political slant of the court, the Roberts court. I think it was particularly some of the Democrats arguing that though some of the great rulings were made, 9-0, 7-2, the Roberts court was pushing the court to the right on very narrow 5-4 votes, and whether she thought that she would be able to work against that. She declined several times to characterize her - well, who may be her future colleagues should she be confirmed.

Mr. SAVAGE: Yes. She basically didn't want to say anything critical of the court that she's about to join, and she said that. There was a really interesting sub-current - undercurrent here, Neal. If you listen to the questions, is that a lot of the Democrats wanted to keep making the point is that the Roberts court has handed down a series of decisions that are favorable to corporations. A lot of the Republicans wanted to make the counterclaim which is that the government is out of control, the deficit has bloomed, blossomed and you, the Supreme Court - she was actually criticizing Elena Kagan - the Supreme Court has allowed the government way too much power to regulate the economy. And when you get up there, you ought to put limits on the government's power under the commerce clause. This is really a debate about the health care, the constitutionality of the health care bill, which is coming down the road. So both parties have a very different view about what they think is wrong and what the Supreme Court should do.

CONAN: As mentioned often, there's no surprise about the fact that Elena Kagan served in the Democratic administrations of Bill Clinton and most recently, of course, still in the Democratic administration of Barack Obama as solicitor general. Critics feared she would bring a political slant to her opinions. Senator Russ Feingold, the Democrat, asked her about that and here's her response.

Ms. KAGAN: My experience in the White House during the 1990s is valuable in one sense, which is that it taught me to very much respect the other branches of government. You know, I'm not a person whose experience is only and all about courts. I don't think courts are all there is in this government. I think that the political branches, Congress and the president, are incredibly important actors and should be making most of the decisions in this country. Courts do police these constitutional boundaries, do insure that the Congress and the presidents don't overstep their role, don't violate people's individual rights. But when it comes to policy, it ought to be courts that - excuse me, it ought to be Congress and the president that do the policymaking.

CONAN: A slight verbal slip there that almost reminiscent of the last time we went through this exercise with Sonia Sotomayor, David Savage. But Elena Kagan making it clear - and a wise thing to do when you're testifying before Congress - that all the branches of government are incredibly important.

Mr. SAVAGE: Yes. There's a lot of things that Elena Kagan said that may well -they could've been said by John Roberts or Sam Alito, which is that the courts are not supposed to be making policy. That's for the elected leaders of - and as you say, it's certainly a smart thing to do, say, when you're addressing a group of lawmakers.

CONAN: And there is no drama at this point about her confirmation. I guess we don't know how many if any of the Republicans on the committee or, indeed, in the Senate are going to vote for her.

Mr. SAVAGE: Yes, the one thing that's really changed in the last 25 years or so, it used to be the case that a qualified nominee got 90 votes. Now you get 55 or whatever, 60, no more.

CONAN: You're listening to an NPR News Special.

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CONAN: This is an NPR News Special on the confirmation hearing of Supreme Court nominee Elena Kagan. I'm Neal Conan in Washington.

After almost two full days of testimony, Obama's - President Obama's pick for the Supreme Court has faced questions on legal issues, from abortion rights to gun rights and states' rights. She's been more open on some issues than others. She's managed to get a few laughs from the Senate Judiciary Committee in the process. What have we learned though about the nominee and how she might fit in on the Supreme Court should be - she be confirmed? Most now agree she probably will.

Joining us for more analysis of the testimony are Gloria Browne-Marshall, associate professor of constitutional law and criminal justice at the City University of New York. Nice to have you with us today.

Professor GLORIA BROWNE-MARSHALL (Constitutional Law and Criminal Justice, City University of New York): Thank you.

CONAN: And John McGinnis, professor of law at Northwestern University. Nice to have you with us.

Professor JOHN McGINNIS (Law, Northwestern University): Yes. Thank you.

CONAN: And they join us from our bureau in New York. Gloria Browne-Marshall, let me begin with you. It comes as no shock that a constitutional law professor would appoint somebody broadly in accord with his views. Is what you're hearing somebody who would generally agree with President Obama?

Prof. BROWNE-MARSHALL: I think it's someone who would generally - not only agree with President Obama, but most presidents try to select nominees who fall within their ideological background. So I think this is not different from what you would see with any other nominee or have seen with any other nominee.

I think it's interesting that she is so scholastically oriented. And when you watch the conversations and she pinpoints particular cases and the arguments by the court and the arguments within the legal doctrine, it's fascinating from my standpoint to watch it at work.

CONAN: John McGinnis, Republicans have - as well as Democrats have pointed out she does seem to know her field. Have you heard anything to suggest that she's outside the mainstream?

Prof. McGINNIS: I don't find that term particularly useful. I don't think she is outside the mainstream. Anyone who's confirmed for solicitor general is unlikely to be, in my view, outside the mainstream. She's done an extremely good job. I think she's been fluent, nuanced and deft much more so than President Obama's previous nominee, who I did not think met the very high standards that, for instance, Justice Roberts really has now set for these confirmations hearings.

CONAN: In what way would you distinguish her from now Justice Sotomayor?

Prof. McGINNIS: I just think in the depth of her answers and in what I - the humor that she has expressed in the - in some sense, it's - because this is really a theatrical enterprise in some sense, being before the Senate. She just seems very much, as actors would say, off book. She knew her subject so well that she was able to interject a lot of power, passion and humor and seemed actually having a conversation with the senators that wasn't stilted. So I think she came across a really - very well in that sense.

And in that way I think she will be very much a counterpoint to Justice Roberts. He seems to me to have the same kind of easy way with people and that can help her to some extent, at least at the margins on a court where interpersonal relations sometimes count.

CONAN: Well, Gloria Browne-Marshall, she would be replacing Justice John Paul Stevens who was described as the intellectual, emotional and tactical leader of the liberal wing of the court. And one of the ideas that President Obama apparently had when he made the nomination was just what John McGinnis was talking about, her ability to bring groups together.

Prof. BROWNE-MARSHALL: Well, to bring groups together to actually speak with staunch Republicans and agree to disagree on what she has written. And they've had memos and placards and a number of different audiovisual items to try to catch her with her own words. And she's been a tactician as well as a scholar.

I would say one thing that's frustrating them is forthright as she appears to be. That's one thing they keep coming back to, the fact that they don't believe that she is telling all, especially after writing an article in which she felt the nomination process should include more in-depth answers on the part of the nominees.

They're frustrated on the Republican side because they feel especially, for example, with Citizens United and with the Don't Ask, Don't Tell policy as it was applied on Harvard's campus, that they feel that she's not being as forthright as they want her to be, but possibly it could be she's just not giving them the answers they want to hear.

CONAN: John McGinnis, on those two issues, those are issues where she is pretty much on the record. The Citizens United case, of course, she argued on behalf of the government, and we know her views on Don't Ask, Don't Tell.

Prof. McGINNIS: Well, she has made the point and I think it's a very important one that she argued for the government. And, historically, it doesn't follow that simply because you argue the case for the government you'll come out the same way as a judge. Justice Jackson famously argued a lot of cases for Franklin Delano Roosevelt and I think came out a few - on a few issues differently in that case. So I don't think that's necessarily a very strong predictor of where she'll be.

One reason she's been able to be, I think, as many nominees are, quite cagey outside of those other areas is she's in a very strong position. She has 59 Democratic votes. President Obama, while he's much less popular than he was, isn't at the nadir popularity that President Reagan was in the Iran-Contra affair, which I think contributed to Judge Bork's defeat.

She has a very good hand and she's playing it very skillfully.

CONAN: She, at one point, told one of the senators that she's enjoying it. Well, I'm not sure - she looked like she was, in any case.

Prof. BROWNE-MARSHALL: Well, I think it's really interesting having the senators trying to debate legal concepts with her and even precepts on such things as, you know, original intent and the commerce clause and its application, all of those things, and of course, the importance of precedent, with someone who's been the dean of Harvard Law School. And I can see why they're a little bit frustrated because they know what they want to have her say, and she's not allowing them to do that. So she is able to not only have humor - for example, the remark she made about Christmas and the fact that she was asked what was she doing on Christmas Day. And she said, well, like all good Jews, I was at a Chinese restaurant.

So the fact that she was able to add the humor, and from her standpoint not feel in any way sensitive about it, but understand that these people have a job to do. Those Republican senators have a job, and that is to find some type of hole in the armor, and that's what they're looking for and they haven't been able to find it yet. And I think that's what's causing them to look a little more caustic. And as they do so, she looks more at ease.

CONAN: John McGinnis, one of the big questions coming in was her lack of experience as a judge, indeed lack of experience in a courtroom. She did work as a lawyer for a big law firm but only for a couple of years. Most of her experience has been in academia, of course those four years in the Clinton administration and most recently, of course, as solicitor general.

Do you think that the knowledge that she has shown in terms of the cases she cited and the principles she's talked about, has that gone some way to alleviate those concerns?

Prof. McGINNIS: I'm sure it has with the public. Having, of course, known Dean Kagan, I had no such concerns, but I'm sure it has.

I think the hardest issue for her is actually not her knowledge, and this is what the polling, I think, has suggested, is that she comes out of the administration. And most people's idea of a judge, of course, is that they want to be independent. And I think what she has been trying to do, and I think with some success, is to demonstrate that she will have a kind of independence of mind.

Now, I very much agree with Gloria that any justice is likely, at least at the beginning, to entrench the principles of his party - in this case, abortion rights, upholding the health care bill. But I do think that Dean Kagan, both in her writings and in this testimony, has suggested that she has the quality of mind that may make her somewhat unpredictable 10, 20 years hence. And that's really quite important because with longevity, and I think the increases in longevity, we could be talking about Justice Kagan in 40 years from now. And at that time, the issues that so divide the nations could be quite different.

And we have historical examples of where justices have then become - all appointed by the same president - have quite divided on the new issues that come up. And in that sense, I think she should give people, even who correctly think she'll come out the ways they don't like in the next 10 years, some comfort for the long term.

CONAN: What are the issues that has come more to the forefront since 9/11 has been the issue of executive power in terms of the wiretap cases and the interviews and the military commissions that came into force during the Bush administration. Has she made herself clear in any case, in any sense, on how she feels about that, Gloria Browne-Marshall?

Prof. BROWNE-MARSHALL: Well, I think that's where the Democrats are a little concerned as well because they see her as someone who is independent. One of the things they've said again and again is the fact that she's been able to bridge the sides and that even though she may be seen as a progressive, she's actually acting in ways that have made the Republicans, who are conservatives, comfortable as well. So I think there are many Democrats who are not sure. And as was pointed out, Jackson did the same thing with FDR. I mean, many people thought he was going to support all of FDR's executive decisions, and he didn't. And so I think she falls well within that realm that we're not sure, one side or the other, where she is going to be in about five to six years.

CONAN: And, John McGinnis, as you look at her - well, again, not a judge though obviously a long time as a lawyer, we have become accustomed to lawyers, judges being appointed to be members of the Supreme Court. Historically, that's not always been the case.

Prof. McGINNIS: No, it certainly hasn't. Even as recently as in the '70s, we had people appointed from other walks of life. Justice Rehnquist was the head of the Office of Legal Counsels. (Unintelligible) that's comparable. The government's chief solicitor, he - she's the chief barrister. And we had Lewis Powell, a lawyer from private practice. I certainly don't think that's a necessity. I think you actually, though, have to go and show a kind of independence. And I think that really has been her objective in the hearings.

But I do think the advantage, particularly in our contentious times, of having been a judge, is you actually show that you can put aside partisan considerations. And that's, in my view, one of the real risks that the court has really, for itself, opened up by dealing with issues like abortion, which really aren't clearly in the Constitution. They made the court a much more partisan institution.

I think that's why we tend to see much more party line votes recently because of issues like abortion, where it really - I think it's hard to find them in the Constitution. And so you're really voting on the justice's values rather than simply their legal experience.

CONAN: Judge...

Prof. BROWNE-MARSHALL: I would agree. And especially when you go even further back to Chief Justice Earl Warren who was governor of California and then was appointed to the bench, and we saw Brown v. Board of Education come from that court. I think that is what worries many of the - some of the Democrats and many of the Republicans, that she doesn't have a track record they can look to, one they can tear apart, but also one they can use as a roadmap for the future.

CONAN: That is Gloria Browne-Marshall, associate professor of constitutional law and criminal justice at the City University of New York. Also with us from our bureau in New York, John McGinnis, a professor of law at Northwestern University. You're listening to a special report from NPR News.

And I wonder, John McGinnis, the comment that she made yesterday in response to a question about her view of the Constitution, how she reads the Constitution, was that she said she saw the framers as having written a timeless document in the sense that we're all always going back to what they intended and what they wrote. We are all originalists. Well, I'm not sure that that's going to quite satisfy those who believe they should stick closely to the text of the Constitution.

Prof. McGINNIS: Well, it's hard to know just from that comment. I take some comfort when she says we're all originalists. Justice Stevens for instance, whom she's replacing, has actually attacked originalism on the court. Now, what kind of originalist she'll be, I think, is open to question. But the fact that she has actually said - and I think she means by that, an area where there's little precedent, that following the original Constitution is going to be her duty. And I do think that she should give us some comfort.

And it's the case that the principles, of course, have to be applied differently. But one of the critiques of the - of some of the Warren court decisions, some of the Berger court decisions is there were things that actually you couldn't find in the Constitution, like the right to abortion. So actually saying that we're all originalists now may suggest that she's not so likely to mint new rights even if she's going to still continue to entrench the old rights the court has found even if they're not originalist rights.

CONAN: And Gloria Browne-Marshall, this comes up also in a context of would she go along with her mentor, Thurgood Marshall, in his belief that the Constitution is intended that his role as a justice was to stand up for the little guy.

Prof. BROWNE-MARSHALL: Well, she said that she actually had disagreements with Thurgood Marshall as a law clerk. And I was a law clerk in state court as well as the federal court, and - not on the U.S. Supreme Court though. And I know that as a law clerk, depending on the judge, the judge tells you to follow a certain mindset and you follow it. He or she may be open to discussion, but at the end, they make the decision.

She's saying that even when she was clerking for Thurgood Marshall, that they would have decision-making processes that involved her input, but in the end he would rule in a way she disagreed. And so, I would say, even then, she was not the person who always wanted to champion a little person, you know, at the stake of anything. And she talked about her father in some of the other things I've read that her father stood up for the little guy at any cost.

And I think perhaps her stake in this is that she wants to do what's right and it's not always the little guy that has the right way or right action for that particular circumstance.

CONAN: But was that coded language to say, are you going to stick up for civil rights? Are you going to stick up for gay rights?

Prof. BROWNE-MARSHALL: I think that in a way, she's speaking up for what she believes is right. And there are those people who are against Don't Ask, Don't Tell who believe that she should have gone much further, their questioning around Don't Ask, Don't Tell. And she said, well, I did not prohibit the military from coming on campus. I just decided I had to work within the confines of what I thought was important, which was the anti-discrimination policy of Harvard.

And so, there are those who thought she had gone so far as to ban them from campus, and now they're saying that she will take the middle road.

Prof. McGINNIS: If I might just jump in here. I think one thing she's trying to say, and I think it's a very important point about the Constitution is just because she has some views, policy views - and most of her positions before being the solicitor general were policy positions in the government - of course, as dean, she's also a policymaker for the Harvard Law School - that doesn't mean she thinks that they are in the Constitution. Law is a different enterprise from politics.

And so it's completely plausible to think that she supports same sex marriage as a policy matter and yet would not rule that there is a right in the Constitution. There are many of us on all sides of the political spectrum who understand that kind of difference. And she was making that point again and again at the hearings.

Prof. BROWNE-MARSHALL: But she also was very much one who said, I have to see the facts. And then I'll base it on the facts and the application of the law. So I think if the fact situation is not one in which she would agree that the law should be applied and then found to support her policy or a legal belief or whatever it might be, if it doesn't fall within the confines of the law, I think she's going to rule against it even if it goes against her and her belief.

CONAN: Well, thank you both very much for your time today. We appreciate it. You just heard Gloria Brown-Marshall, associate professor of constitutional law and criminal justice at the City University of New York. Thank you very much for your time.

Prof. BROWNE-MARSHALL: Thank you.

CONAN: And thanks to John McGinnis, a professor of law at Northwestern University, who joins us from our bureau in New York. They were both there.

Prof. McGINNIS: Thank you.

CONAN: And David Savage, we have to thank. He was our guest earlier. He covers the Supreme Court for The Los Angeles Times and The Chicago Tribune.

Again, the confirmation hearings for Elena Kagan continue. She's expected to wrap up her testimony today. There will be another day of hearings when other panelists arrive to talk about her qualifications or not for the Supreme Court. At this point, senators on all sides of the aisle say she's expected to be confirmed. More later on NPR News. This is special coverage.

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