What We Now Know About Elena Kagan

Her humor, her hinted positions, her weaknesses

As we head into the third day of hearings, having gotten some more revealing exchanges Tuesday after an unremarkable first day, what do we now know about Elena Kagan? Here's the roundup, as judged by political and legal observers.

• 'Empathy' Isn't the Be-All, End-All  Kagan "walked away from President Barack Obama's 'empathy standard of judging," notes Politics Daily's Andrew Cohen. Howard Wassermen, associate professor of law at Florida International University, adds that she did say "a judge is required, really--not only permitted, but required--to think very hard about what each party is saying, to try to see that case from each party's eyes." His reaction: "I liked this answer because it re-introduces us to the adversary system and the role of parties and lawyers in the process of making law and deciding cases."
  

• She Believes in an 'Enduring Constitution' and Recent Gun Rights Decisions  Kagan's belief in a Constitution written to "last through ever-changing circumstances" is noted in an AP report. (See the clip in The Huffington Post's "Highlight Reel" of yesterday's proceedings.) Also shown on the reel Kagan considers the new precedents set in gun rights to be "settled law."
  

• She Won't Get Drawn Into a Debate Over Health Care  Sen. Tom Coburn of Oklahoma tried to test Kagan by asking whether a law mandating three vegetables and fruits a day would violate the Commerce Clause. Though she replied that it "sounds like a dumb law," ("I got one that's real similar to it that I think is equally dumb," responded Coburn, referring to the health insurance mandate) The Weekly Standard's John McCormack notes that she did not actually say whether she thought such a law would violate the Commerce Clause.

• She's Still Controversial Because of the Military Recruiting Issue  "Whether Kagan's boosters in the press like it," writes Gary Marx at National Review, "Kagan's decision to kick the military off the Harvard Law School campus has received widespread notice.  The fact that she has no judicial experience and mostly political experience has penetrated. "

• And Her Record Remains Thin  Gary Marx mentions this point, too, but Paul Campos is the one who really explores the issue at The Daily Beast. He's skeptical of her "25-year career that she has seemingly dedicated to never expressing a legal or political opinion that could be held against her in a Supreme Court confirmation process ... Her thin sheaf of academic writings addresses only a handful of very narrow technical legal issues in an especially cautious and non-revelatory fashion. She has never published a word not intended for an academic audience."

• She's Got a Sense of Humor  The CNN analysis paints Kagan as "confident and assertive," and points to her response to Senator Specter's question about allowing cameras in the Supreme Court as evidence of her humor: "'It means I'd have to get my hair done more often, Sen. Specter,' Kagan replied."

• She's a Good Performer, agrees Garett Epps at The Atlantic, who is nothing but impressed so far. One anecdote:

Senators might do well to use caution in taking her on. She has been ready for them. Kyl, for example, tried to grill her about a memo she wrote to Justice Marshall during her clerkship. "For once," she wrote, "the (Solicitor General's) office is on the side of the angels." Surely that showed an anti-government bias?

Was Reagan solicitor general, Charles Fried, in office at the time? Kagan asked. Yes, Kyl said.

She looked over her shoulder. There was Fried himself, like Marshall McLuhan in Woody Allen's Annie Hall, sitting in the guest section to support her nomination. "Sorry, Charles," she said

• There's Something Odd About This Abortion Case  Shannen Coffin at National Review takes extreme exception to "the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000." It was supposed to have come from a panel of the American College of Obstetricians and Gynecologists, saying that the procedure "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman."  But "the problem," says Coffin, "is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG's policy statement at the suggestion of then-Clinton White House policy adviser Elena Kagant." He thinks this constitutes "distortion" of science for political objectives.