After holding a confirmation hearing last week, U.S. senators submitted written follow-up questions to Supreme Court nominee Elena Kagan. Her answers came back today.
In 74 pages of answers to six Republican senators, Kagan addresses a wide array of subjects. Many of them came up during her confirmation hearing, though in at least some cases she provides more detail than she did during her two days of live testimony before the Senate Judiciary Committee.
Kagan names 11 cases in which she would likely recuse during her first term on the Court, because of her involvement with the cases as solicitor general. Her answer came in response to Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, who put the issue at the top of his list.
Sen. Lindsey Graham (R-S.C.), who has dropped hints that he’ll vote to confirm Kagan, asked a series of questions about the rights of suspected terrorists who have been detained. She responded at length, citing precedents about presidential war powers and habeas rights.
In response to Graham, Kagan also forecast what the Court might think about if, as Attorney General Eric Holder Jr. has suggested, the government tries to expand the public safety exception to Miranda warnings. The Court’s 1984 opinion in New York v. Quarles created the public safety exception.
“In analyzing whether particular questioning falls within the public safety exception, the Court likely would consider the gravity and immediacy of the public safety threat and whether the questions were directed to addressing that threat,” Kagan wrote. “The Court might also consider whether Quarles should apply differently in terrorism cases than in ordinary criminal cases because of the distinctive public safety needs involved in the former.”
Sen. Tom Coburn (R-Okla.), who voted to confirm Kagan as solicitor general, posed several questions about socialism, prompting Kagan to reply that, aside from an undergraduate thesis she wrote, “I have not explored in any significant way the tenets or beliefs of socialists.” She added, in response to another question, that she does not agree with the views of the Critical Legal Studies movement, which was fomenting at Harvard Law School in the 1980s.
Kagan also told Coburn not to read too much into statements she made during her hearing about abortion. Those statements, she said, were “intended to reflect my understanding of the prevailing law.”
No Democratic senators submitted follow-up questions. Click here for Kagan’s answers to the Republicans.