5 Ways the GOP Is Challenging Elena Kagan

After a dull first day, the confirmation hearings heat up

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The second day of Elena Kagan's Senate confirmation hearings for the Supreme Court is showing a bit more fireworks than the somewhat dull first day. Republicans on the Senate Judiciary Committee are fervently expressing their opposition to Kagan, citing her judicial record, her philosophy, and her performance at the hearings themselves. Here are their concerns.

  • 'Progressive' Desire to Change Constitution  The New York Times' Charlie Savage and Sheryl Gay Stolberg report that Kagan's explanation that parts of the Constitution "are meant to be interpreted over time" provoked some GOP ire. "The ranking Republican on the committee, Senator Jeff Sessions of Alabama, pushed that line of thinking, pressing Ms. Kagan about what he characterized as a 'progressive' legal view that would allow judges to 'update the Constitution to make it say whatever they would like it to say. ... You’re not empowered to alter that document and change its meaning — you’re empowered to apply its meaning faithfully in new circumstances, wouldn’t you agree?' Mr. Sessions said."
  • 'Not Friendly' to Military  The Chicago Tribune's Mike Memoli says that Republican Sen. Jeff Sessions "accused Elena Kagan of treating the U.S. military in a 'second-class' way during her time as dean of the Harvard Law School, banning military recruiters from campus because she opposed the don't ask, don't tell policy. ... [Sessions] accused the nominee of creating a climate on campus 'that was not friendly to the military.'"
  • 'Not Rigorously Accurate' on Harvard Record  Politico's Manu Raju reports, "Alabama Sen. Jeff Sessions slammed Elena Kagan's testimony ... Referring to her explanation about denying military recruiters access to Harvard Law School's facilities, the Republican said: 'The overall picture that she portrayed of the situation seems to me to be disconnected to the reality. ... I believe that's a serious matter.' Asked if she was being intellectually dishonest, Sessions said: 'I feel like she was not rigorously accurate. There's not two truths about what happened at Harvard, there's one'"
  • Just Too Ideologically Liberal  ABC News' Devin Dwyer writes, "Kagan's attempt to cast herself as an open-minded consensus-builder may not easily sway some Republicans who warn she would be a justice whose liberal political views will influence her decisions. ... Sen. Lindsay Graham, R-S.C., said he believes Kagan is qualified, but wanted reassurances that her role in liberal causes will be "parked at the door" if she enters the court."
  • Going After 'Empathy'  Talking Points Memo's Andrew Pincus says Republicans have renewed their line from the Sotomayor hearings. "Senator Jon Kyl, one of the most adept questioners on the Judiciary Committee, takes Kagan through a series of issues relating to her approach to judging. He begins by asking about the President's famous comment of last year that judges should have 'empathy.' Rather than rejecting the idea, Kagan explains what she would do. She says that a judge's job is to consider fully each party's argument, and in particular to understand completely how the facts and legal issues look from each party's perspective--but then to apply the law."
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