Specter Unhappy With Kagan's Answers

Sen. Arlen Specter (D-Pa.), a perennial wildcard in Supreme Court confirmation hearings, cut short a line of questioning to nominee Elena Kagan today after he said she was not giving him substantive answers.

Specter warned that he was struggling to find a reason not to vote against her.

“You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further.”

The senator and the nominee were sparring over a relatively obscure area of the law — a standard the Court uses in reviewing the constitutionality of legislation. Justice Anthony Kennedy wrote for a majority in a 1997 case, City of Boerne v. Flores, holding that legislation involving constitutional rights had to show “congruence and proportionality” with the rights protected, a stricter test than the previous “rational basis” standard.

Kagan declined to say whether she agrees with Kennedy’s standard. “I can’t sit at this table without briefing, without argument, without discussion with my colleagues, and say, ‘Well, I don’t approve of that test. I would reverse it,’” she said.

“Perhaps you haven’t answered much of anything,” Specter retorted. “Why do you have to read briefs on a standard? This is not a specific case. This is a standard as to whether the rational basis is sufficient or as to whether you need congruence and proportionality.”

But Kagan, who in a 1995 law review article famously called for nominees to discuss substance, defended her decision not to comment.

“You shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues,” she said.

Speaking to reporters afterward, Specter again declined to say how he plans to vote. “There’s a calculation, on the part of the nominee and her advisers, that this is the way to testify, that this is the way to help themselves,” he said. “Whether they’re right or wrong comes out in the wash.”

Comments

[junior]

Spector is unhappy because a SP nominee is not answering question? Oh, my, I'm shocked! Shocked? And doesn't Spector make a fool of himself by pretending to be shocked too. Remember he's the man who attacked Anita Hill for daring to tell the truth about the lies nominee-what's his name? Oh,yeah, Clarence Thomas was telling.

[Keith]

The dog and pony show continues...

Kagan's response to this question is reasonable, and right. Unfortunately for Kagan, her positions on First Amendment rights seem indicative of one who regards the Constitution's restrictions on government to be anachronistic.

The U.S. government was created for two reasons: 1. to protect freedoms; and 2. as a focal point for the "social contract" for citizens to deal collaboratively with major disasters and invasions. That is my studied position, not one I've seen or heard often.

I reject the notion that the government (or any institution--i.e., the Fed) is supposed to manage the economy or any aspect of private lives that does not destructively impact the rights of others. I also reject the notion that "a compelling government interest" is a valid point in judicial proceedings. It is not. Either a law or ruling is constitutional or it isn't.

I call on all sworn persons to refer to their Oath of Office which swears them first to the U.S. Constitution. If any part of the Constitution is anachronistic in reality, there is a process called amendment that is meant to deal with such matters. "It's too hard" is not a justifiable excuse for bypassing amendment by overwriting the Constitution with illegal laws, regulations, rulings, etc.

"Conservatives" and "liberals" both seem to miss this point with regularity. I salute Justice Thomas for his apparent awareness of it.

[mc]

"If they lose elections they still think they rule."

No, we happen to believe the Constitution rules, where after progressive think the Constitution is getting in their way of turning us into France...which it SHOULD!

[Escalonz]

Righties have a strange view of things.

=======================
Lefties defy logic and reason and are incapable of accepting reality.

[Louis]

Specter cant understand that you never make tough decisions without discovering the "facts"!!!....."Facts" determine outcome of testimony!!!...Arlen is nothing more than a party crossing turd who will do anything or say anything to make himself look like he cares!!!!....He is a true political baffoon!!!.....

[DownriverDem]

Kagan is going to be the next Supreme Court Judge. Yea!!!!

Now if only a rightie would leave and we could get a 5-4 make up.

Righties have a strange view of things. If they win elections they rule. If they lose elections they still think they rule.

Must be the bully in them.

[creeper]

Classic example of Specter's compulsion to be in the limelight. This is all hot air.

[Jimmie]

Given the planned/trained testimony of SC nominees since Bork, what good is the Senate judiciary if they can no longer get a substantive answer to a reasonable question.

Liberal/Socialists have taken over the government of this Country, and will soon take over the ultimate decider of the constitution, the SC. The Constitution and the Bill of Rights is but a thorn in the side of the Executive Branch of our Government who already does what it pleases with an in your face attitude. Look to the Cheny/Bush government, and now even worse, Obama, the un-American American. The House and the Senate - no hope there!

Kagan, must go!

[John]

The last thing we need is a Kagan on the court.
She is just a crony of Summers, and she made crony appointments when she was dean. Kagan's botched job on citizens united proves she is not fit for the court. The country needs a strong able justice to balance Robert's extreme right wing activism.

[Kevin Mac]

I've always respected Specter's willingness to speak his mind, irrespective of where the GOP/Dem line was drawn. I think this independence is why he found himself without support after his switch.

[truthfool]

and alito and roberts were not evasive

[P. Singer]

Specter is one of the biggest grandstanders in Congress. Remember the Clarence Thomas hearings? I doubt if there is any personal or genuine political concern in his complaints about Kagan--just press, press, press.

[Joseph Leech]

To be criticised by Arlen Spector should be taken as the highest form of public endorsment by anyone. What a complment.

[STEPHEN R. STEINBERG]

Specter is a better lawyer than to ask a judge nominee to tell him and the country how she would vote, especially on an issue that has once been decided by the Court after briefing, argument and consultation. What is Specter up to? I regretfully think that he is giving OBama's nominee a hard time because he is angry or hurt or both that the OBama White House didnt help him beat the liberal congressman who is the Democratic nominee for Senator.

[ra]

Is it the beginning of the end?