Live: Elena Kagan Senate confirmation hearing

6:20 p.m. EDT
The Senate Judiciary Committee went into a closed session late Wednesday afternoon after two days of public questioning of Elena Kagan, whose nomination to the Supreme Court appears headed toward confirmation.

Committee chairman Patrick J. Leahy (D-Vt.) closed the public question-and-answer session by thanking Kagan for her cooperation and patience, saying she answered its questions “more fully than recent nominees� had.

“You’ve demonstrated an impressive, encyclopedic knowledge of the law,� he said.

His Republican counterpart, Sen. Jeff Sessions of Alabama, said he remained “troubled� by Kagan’s testimony on her role in banning military recruiters at Harvard Law School, while expressing concern as well about such issues as gun rights, citing foreign law in domestic cases and the idea of “legal progressivism,� something he called a “pernicious philosophy.�

“[People] want to know that the next nominee to our Supreme Court will be faithful to that Constitution, even if they do not like it,� he said. “Some of the things you said today … the combination of record and statements, leaves me uneasy.�

Sessions did not definitively say he would vote against Kagan’s nomination. But after testimony noted more for Kagan’s quick wit than any controversial statements, it is likely she will have enough support among the Democratic majority for the nomination to be sent on to the full Senate.

Before that vote, the committee will hear from a panel of witnesses in support of and opposing Kagan’s nomination. The proceedings were hurried somewhat because of memorial services planned Thursday and Friday for the late Sen. Robert Byrd (D-W.V.).

Leahy noted as he closed the open hearing that this would likely be the final time Kagan would have to testify at forum like this. She said she found the process “somewhat wearying,� but that it was “a great moment in my life.�

-- Michael Memoli in Washington

4:58 p.m. EDT
Vegetables, werewolves and vampires
It can be a struggle, even for a senator, to find something new to say in the third day of marathon hearings into the qualifications of a Supreme Court nominee. But when there is a will, there is always a way, even if it involves werewolves and vampires, fruits and vegetables.

In questioning Elena Kagan, Sen. Tom Coburn (R-Okla.) on Tuesday and Wednesday invoked fruits and vegetables as he posed his questions about the expansion of the Constitution’s commerce clause. Can a government pass a law that forces people to eat three servings of fruit and three of vegetables, asked the senator, who is also a doctor.

Kagan refused to really answer the question which is more political than whimsical.

The question is part of the conservative GOP attack on the Democratic-inspired healthcare insurance overhaul. The law mandates that Americans have health insurance and that requirement has been challenged by conservatives, who argue that it is an example of big government improperly infringing on the liberty of citizens.

It is possible that Kagan, if confirmed, may get to sit in judgment on the healthcare overhaul, but probably not on the efficacy of fruits and vegetables.

There are host of potential Supreme Court issues that come from vampires and werewolves. They could generate such hot political issues as inclusion, illegal immigrant status and cruel and unusual punishment.

Alas, when Sen. Amy Klobuchar (D-Minn.) mentioned them, it was really more cultural than political. Which denizen would Kagan support in the hot love triangle at the core of the “The Twilight Saga: Eclipse� movie, which opened this week? For those who have skipped this cultural icon, Bella, the human heroine, has to choose between Edward the vampire or Jacob the werewolf.

Kagan, who has made dodging her personal preferences an art form during the hearings, sidestepped this one as well.

--Michael Muskal

3:47 p.m. EDT
Legal questions, political issues
The Senate Judiciary Committee hearings became more like a law school seminar Wednesday afternoon as Sen. Lindsey Graham and Supreme Court nominee Elena Kagan discussed two of the more complex legal questions: How do laws change? And what is the role of science in law?

The subjects may sound theoretical, but they go to the heart of abortion rights, one of society’s more contentious political issues. They are also mileposts on what has become a GOP thread in examining Kagan’s role as a political advocate in the Clinton White House.

Graham, a conservative South Carolina Republican who opposes abortion, started by asking Kagan about one of the great reversals of the Supreme Court on race. It was in 19th century that the court upheld the idea of separate but equal in Plessy vs. Ferguson, only to reverse it in 1954 in Brown vs. Board of Education.

The Brown case was argued by then-attorney Thurgood Marshall, who later served on the Supreme Court and hired Kagan as a law clerk.

Graham asked how could the court move so far since the words of the Constitution hadn’t changed and precedent, on which judges love to rely, would have prevented change.

Kagan agreed that the Constitution hadn’t changed, but noted that precedent had, as did the court’s understanding of the world. “Brown,� Kagan noted, “was a thunderbolt out of the blue.� Marshall had built on a series of race-related cases that made it easier for the Warren Court to overturn Plessy and revolutionize race relations in the United States, she said.

Graham, too, said he supported the legal change in race, then made his point by asking about abortion rights rulings. Supreme Court nominees like to say that abortion rights is settled law but cases dealing with the issue continually come up.

Graham didn’t ask if a reversal was possible, but then he didn’t have to.

The Southern senator noted that viability of the fetus was part of the thinking that led to the court’s decision in Roe vs. Wade. But science has marched on and fetal viability has expanded in the decades since the original ruling.

“Is it fair for the court to consider scientific changes?� Graham asked. “I do think in every area,� Kagan said, that it is proper “to consider science changes.� She also cited technology issues, a growing area of law.

After the theory, Graham followed up on questioning Wednesday morning by Sen. Orrin G. Hatch (R-Utah), who asked about Kagan’s role as a White House policy-maker dealing with “partial-birth� abortions. As she did earlier, Kagan deflected questions, even when Graham tried to reassure her that it would have been OK for her to have acted based on her political leanings.

“I wish you well,� Graham said at the end. “You handled yourself well.�

-- Michael Muskal in Los Angeles

1:47 p.m. EDT
Hard to pin down
It’s tough to get a specific answer out of a Supreme Court nominee, as Sen. Arlen Specter (D-Pa.) learned once again in his questioning of Elena Kagan.

Specter, the last senator to question Kagan before the Senate Judiciary Committee broke for lunch Wednesday, asked if she, as a justice, would grant permission for a suit involving Holocaust victims suing an insurance company.

As other nominees have before her, Kagan has avoided answering in specifics, arguing that a case could come before her.

Kagan ducked Specter’s question, saying that as solicitor general she could have role in deciding whether to pursue the appeal of the case. There is no guarantee that she will be confirmed as an associate justice and “I don’t want to count my chickens,� she said.

“I’m one of your chickens,� Specter replied, unsuccessfully urging her to answer.

-- Michael Muskal in Los Angeles

1:05 p.m. EDT
Kagan questioned on “partial-birth� abortion policy
Sen. Orrin G. Hatch (R-Utah) questioned Elena Kagan on her role in dealing with “partial-birth� abortions and whether she forced a medical group to change its statements on the procedure to accommodate political views.

Hatch, a conservative who opposes abortion, brought up the issue as the GOP pressed a line of questions designed to explore how the Supreme Court nominee would handle politics if confirmed. Throughout, Kagan has insisted that the role of political advocate is different from that of a judge and that she understood the distinction.

In his questions, Hatch pressed Kagan on whether she had discussed specific language on “partial-birth� abortions with the medical group, the American College of Obstetricians and Gynecologists, and whether the group had changed its statements at Kagan’s behest.

In her memos to President Clinton when she was a White House advisor, Kagan described the original language as a “disaster� with “negative political consequences,� Hatch said. ‘I am stunned by a real [politicization] of science.�

Kagan agreed that she had discussed the issue with the medical group, but denied that any changes in language were prompted by fears of political fallout.

“We did have some discussions,� Kagan said. “It was all done in order to present to the president and Congress the most accurate understanding� of the procedure and its uses. “It was an enormously hard issue.�

-- Michael Muskal in Los Angeles

12:37 p.m. EDT
‘Don’t ask, don’t tell’ actions questioned
Republicans began the second round of questioning of Supreme Court nominee Elena Kagan on Wednesday by questioning her actions as solicitor general in pursing cases involving the military’s policy on gays and lesbians known as “don’t ask, don’t tell.�

Alabama Sen. Jeff Sessions, the ranking Republican on the panel, asked Kagan whether she had avoided filing appeals involving the military policy because she opposed the doctrine. Kagan is solicitor general, the government’s lawyer, and is responsible for legally defending government policy.

Her office acted “consistently with the responsibility to vigorously defend all statutes including the ones that embody ‘don’t ask, don’t tell policy,’� Kagan replied. She said her office had consulted with the Department of Defense and decided to wait on appeals for reasons of timing.

“It does appear that your position was in harmony with the position of the American Civil Liberties Union,� Sessions replied. The political point he was making was to link Kagan with the legal group.

In his comments, Sessions repeated that he was disappointed in Kagan’s action in preventing recruiters from using resources at Harvard Law School.

Chairman Patrick J. Leahy (D-Vt.) read a letter into the record from a military officer, who noted that Kagan supported the military and was patriotic.

The panel is hoping to finish its questioning of Kagan Wednesday.

-- Michael Muskal in Los Angeles

12:10 p.m. EDT
Criticism of high court avoided
Elena Kagan tried to avoid criticizing her potential future colleagues as questioning resumed Wednesday in the Supreme Court confirmation hearings.

Sen. Sheldon Whitehouse (D-R.I.), one of four Democratic senators to question the solicitor general at the end of the first round of questioning, used his time to criticize the Roberts court for narrow decisions that he argued have been activist in nature.

“There may be judges on the court who have a particular mission right now and are selectively knocking out precedent that does not coincide with their ideological views,� Whitehouse argued.

Kagan repeatedly said she did not agree with Whitehouse’s characterization of the current court under Chief Justice John G. Roberts Jr., but that, “the court is served best and our country is served best when people trust the court as an entirely nonpolitical body.�

She added, “I’m sure that everybody up there is acting in good faith.�

Despite sometimes contentious exchanges Tuesday, even Republican senators seem resigned to the fact that Kagan will ultimately be confirmed. Speaking to reporters during a break Wednesday morning, Sen. John Cornyn (R-Texas) referred to the nominee as “soon-to-be Justice Kagan.�

Judiciary Committee Chairman Sen. Patrick J. Leahy (D-Vt.) said Wednesday that the timeline for concluding the hearings is somewhat in flux because of memorial services scheduled to honor the late Sen. Robert C. Byrd (D-W.V.). The committee traditionally goes into a closed session with the nominee and invites witnesses to testify.

Hoping to speed things up, Leahy chose not to use his allotted time as the second round of questioning began when the panel reconvened Wednesday morning. He said other Democratic panelists would also likely use only part of their 20-minute bloc of time, if they chose to use it at all.

Republicans said they planned to ask further questions. Sen. Jon Kyl (R-Ariz.) said Kagan has been “very adept at describing what she thinks,� but “adept at avoiding specific questions which could result in criticism of her point of view.� Cornyn told reporters he planned to revisit the discussion of the so-called Solomon amendment, related to Kagan’s actions in blocking military recruiters from Harvard’s Office of Career Services during her time as dean.

-- Mike Memoli in Washington

Third round of questions
9:35 a.m. EDT
Day Three of the Elena Kagan confirmation hearings is now underway, with the Supreme Court nominee facing a friendly round of questioning from the remaining members of the Senate Judiciary Committee -- all junior Democrats.

As Jim Oliphant reports Wednesday morning, the proceedings included a feisty exchange with the panel’s leading Republican, Alabama Sen. Jeff Sessions, over access to the Harvard Law campus for military recruiters during Kagan’s time as dean. Sessions accused Kagan of acting “without legal authority� to bar recruiters from the school’s Office of Career Services, saying she treated the armed forces as “second class.� Kagan said she was simply following the law.

The hearings have run largely on schedule, and Democrats still hope to vote the nomination out of committee by week’s end. When the first round of questions concludes Wednesday, the committee will go into closed session for discussion. Later, senators will have an opportunity for a second round of questions, with 20 minutes allotted to each member if they choose to use it.

When the second round of questioning concludes, the committee will hear from outside witnesses, invited by both Republicans and Democrats. Whether that will occur Thursday, as scheduled, is still in doubt because of memorial services scheduled to honor the late Sen. Robert C. Byrd (D-W.V.).

-- Mike Memoli in Washington