Top Ten Highlights from the Kagan Hearings

Despite predictions to the contrary, the Senate Confirmation Hearings for Supreme Court nominee Elena Kagan presented the best public discussion of judging, the courts, and the Constitution in decades. We've selected some of the most interesting moments from four days of hearings.

Number One:

The stand-out – though little remarked upon – moment for us came when Kagan expertly dissected Chief Justice John Roberts’ famous balls-and-strikes analogy:

Number Two:

Solicitor General Kagan insisted throughout the hearing that thoughtfully applying the Constitution to new situations is not akin to legislating from the bench. Here’s one of her exchanges with Ranking Member Jeff Sessions:


Number Three:

When asked if she would favor the “little guy,” Kagan responded that she would give everyone, little or big, a fair hearing:


Number Four

In this exchange, Kagan chastised Senator Coburn for asking her to judge based on her extra-legal beliefs, rather than limiting herself to the laws and Constitution of the United States:

Number Five:

Democratic Senators offered strong critiques of the current conservative Court. On the third day of the hearings, Senator Sheldon Whitehouse analyzed the activist tendencies of the Roberts Court:


Number Six:

Senator Al Franken instigated a thoughtful discussion on corporate ownership of the media and the attendant threats to free speech:


Number Seven:

Later on, Senator Franken outlined the distinction between judicial review and judicial activism, and pointed out that it has been conservatives, not liberals, who have been guilty of legislating from the bench. He also made a point of defending Thurgood Marshall, who had been under attack from several conservative Senators: 


Number Eight:

Much was made of Kagan’s decision as Dean of Harvard Law School to keep military recruiters from using Harvard Law Schools’ Career Services office because the Don’t Ask, Don’t Tell policy violated Harvard’s own anti-discrimination rules. (Kagan set up an alternate system for welcoming military recruiters to campus.) Questioning witnesses brought in to testify against Kagan, Senator Dick Durbin spoke about respecting the military while disagreeing with its policies:


Number Nine:

When Senator Coburn claimed that American freedoms have been attacked and diminished over the past thirty years, Senator Klobuchar reminded him that freedom is in the eye of the beholder, and the past few decades have seen remarkable improvements in freedom of opportunity for women:


Number Ten:

Finally, no account of the hearings would be complete without noting Kagan’s charming response to Senator Graham’s questions about her whereabouts on Christmas:


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