7:14 ET: That's all for tonight, everyone. We'll be back at it tomorrow morning, so come back to First Read for more analysis and live updates then. Thanks for reading!
7:05 ET: The gavel is down. The hearing is recessed until 9am ET tomorrow. Senators who will get their first chance so far for questions tomorrow: Whitehouse, Klobuchar, Kaufman, Franken. Then the second round starts: Each lawmaker will have 20 minutes to question the nominee.
7:05 ET: "I know it's been a long and tiring day," said Leahy, offering to wrap up today's session, "unless you want to override that."
"No, that's good," Kagan replied.
An almost audible sigh of relief goes up from staff, journalists, and audience members alike.
7:03 ET: Kagan and Cardin are now discussing the high average number of hours of pro bono work (legal services offered for free "for the public good") done by Harvard Law School students during Kagan's deanship. One criticism of Kagan, though, is that she herself has not done as much pro bono work as previous Supreme Court nominees.
6:57 ET: There were fewer reporters at today's proceedings than were present yesterday, but most of those who were here today are sticking it out until the end despite the late hour. There are a total of about 150 seats available for reporters at six long press tables. About a third of the seats are still full now.
6:50 ET: Cardin just referenced allegations of voter suppression during his Senate race in 2006. "There were direct efforts made to diminish minority voting." He defeated now-RNC Chairman Michael Steele by 10 points in that race.
6:44 ET: Cardin discussing minority voting rights and access to the legal system. Cardin was the chairman of the Maryland Legal Services Corporation - which helps give low-income people access to legal aide - for seven years. "The idea of equality under law is a fundamental American ideal, a fundamental American value," Kagan told him.
6:41 ET: Kagan: "The Constitution is a kind of genius document."
6:38 ET: Next up is Sen. Ben Cardin, D-Md. Chairman Leahy indicated that Cardin may not be the final questioner tonight after all. Kagan has now been on the hot seat for almost 10 hours.
6:33 ET: Several senators, mostly Republicans, have asked Kagan about her interpretation of the Commerce Clause. It's an area of great dispute in the legal community. Here's a briefer from Cornell University Law School.
6:28 ET: Coburn asked about the constitutionality of a hypothetical law mandating that all American citizens eat a certain number of fruits and vegetables each day. "Sounds like a dumb law," Kagan responded.
6:23 ET: Senators on both sides of the aisle today have accused current justices of breaking promises they made during their confirmation hearing once they were permanently installed on the bench. "Once you're there, you're there," Coburn underscored.
6:17 ET: Kagan said she is channeling Chief Justice John Roberts' philosophy as articulated in his confirmation hearing. "One should approach the question of Constitutional interpretation pragmatically, without a single overarching strategy," she said.
6:08 ET: Small but noticeable sign that Kagan is getting a little tired -- now nine hours into questioning: She accidentally addressed Sen. Coburn as "Justice Coburn."
"Don't worry, I will never get there," Coburn responded.
6:07 ET: Making sure to call Kagan a 'liberal' numerous times, Coburn (who is one of the Senate's most conservative Republicans) said that Kagan should not be abashed about her views: "I don't want you to run away from that ... it's who you are."
6:05 ET: Coburn said Kagan has been avoiding answering questions straightforwardly: "Maybe you should be on Dancing with the Stars."
6:04 ET: Sen. Tom Coburn, R-Okla., is up next. He may be the last member to question Kagan today. "We'll see how it goes," Chairman Leahy said.
5:58 ET: Who's left? There are currently seven of the 19 committee members on the dais. The two most junior Democrats on the panel, Sen. Al Franken and his Minnesota delegation colleague Amy Klobuchar, have been two of the lawmakers most consistently in the room throughout the day. Neither of them will get a chance to speak until tomorrow.
5:53 ET: It's worth remembering that Kagan has already been asked many of the same questions she is answering today before -- by the same panel of lawmakers. Her views on gun rights, detainee rights, and transparency in confirmation hearings were probed during her Solicitor General confirmation hearing on February 20, 2009. (She shared the spotlight that day with a nominee to become an Associate Attorney General.) The transcript of that hearing is here.
5:51 ET: Kagan emphasizes that the positions that she has taken as Solicitor General have not always necessarily reflected her personal views.
5:45 ET:Kagan: "The constitutionality of the death penalty is established law and entitled to precedential weight."
5:38 ET: Durbin's first question deals with the issue of how those convicted of cocaine possession are sentenced. The wide disparity for sentencing between possessors of crack and powder cocaine is regarded by many as one that is unfair to minorities.
5:34 ET: On to the next questioner: Sen. Dick Durbin, D-Ill.
5:28 ET: Cornyn calling out Justice Sonia Sotomayor for her dissenting opinion in yesterday's Monday's Chicago gun ban decision, which he says is at odds with Sotomayor's testimony during her confirmation hearing.
5:26 ET: More questioning on gun rights from Cornyn. He has an A rating from the National Rifle Association.
5:18 ET: Cornyn asking about whether the individual mandate in the newly passed health care law, which requires most Americans to purchase insurance or face a fine, is constitutional.
Kagan responds: "The current state of the law is to grant broad deference to Congress in this area," (meaning issues that affect interstate commerce). But she notes that there are some limits to Congress's power under the Commerce Clause.
5:15 ET: Cornyn brought up concerns about what he believes to be the increasing intrusion of the government in Americans' lives. Recently, "the Court has suggested that there are some limits on the scope of the federal government," Kagan countered.
5:11 ET: Justices "are always constrained by the law. It's law all the way down," Kagan says of her dedication to the Constitution and legal precedent.
5:08 ET: Cornyn, the chairman of the National Republican Senatorial Committee charged with electing GOP senators, hints at the issue that his party is most enthusiastic about bringing up. He wants to return to the issue of military recruiting at Harvard, which prompted the Sessions-Kagan scuffle earlier today.
5:03 ET: We're back. Sen. John Cornyn, R-Texas, asked if Kagan ever spoke to Miguel Estrada during the time that he was being filibustered by Senate Democrats. She responded that she did not, but that if she did not make a public comment in support of his nomination at the time, it was only because "he never asked me to."
4:58 ET: As Nasty As They Wanna Be is NOT, in fact, the title of a Democratic email blast deriding Republicans for their harsh questioning of Elena Kagan. It's the name of a 2 Live Crew album that Kagan is more familiar with than you'd think. Here's why.
4:55 ET: Fatigued reporters and staff members relieved to hear that the committee won'ttry to fit in questioning from every member of the committee today. We've been advised that either four or five more members of the committee will get their first chance tonight, including the two remaining Republicans - Coburn and Cornyn - on the panel. They'll wrap up the remaining three or four first round questioners tomorrow.
4:35 ET: Another 10 minute break. Leahy said that he's "enjoying some of the ethnic humor" in the hearing, a reference to Kagan's joke about eating in a Chinese restaurant on Christmas Day.
4:29 ET: More from Kagan on foreign law:"Judges should learn from a variety of sources that are not binding, that do not have precedential force."
4:28 ET: Kagan noted that she has "the greatest admiration" for conservative Justice Antonin Scalia, considered by some Democrats to be a judicial bomb-thrower. "Thank you for that," Schumer replied after a pause.
4:25 ET: We're close to a 10 minute break, which will begin after Schumer's time is up.
4:20 ET: Kagan: "The First Amendment has not been thought to be absolute," requires interpretation by the courts.
4:13 ET:Kagan, on judicial 'activism': "I think activism does not have a party."
4:10 ET:Sen. Chuck Schumer, D-N.Y., is the next questioner. He asked Kagan to define what she means by "modesty" on the court.
4:08 ET: Graham just asked Kagan about a 2005 letter that she wrote - along with several other deans - criticizing his proposed amendment to strip the courts of their ability to review detention practices and judgments of guilt for detainees at Guantanamo Bay. Here's an excerpt from that letter (via the gold standard SCOTUSblog)
"Were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "
More: When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as funuamentally lawless."
Graham acknowledged that he did not take her criticism personally. But, he added, "You did say 'that's what dictatorships do.' I thought that was a little over the top."
4:00 ET:Kagan, after Graham asked her to think about the treatment of terror suspects as if she were just an everyday American: "I'm reluctant to say how how I would think about the question as an average everyday citizen, because I might have to think about the question as a judge."
3:57 ET: Returning to seriousness: Graham noted that the Obama administration has been "pretty good to work with" on issues of Miranda rights and terror suspects.
3:54 ET: Comedy continues. After a windup, Graham asked "Where are you at on Christmas Day...?"
Kagan began by trying to clarify Graham's question, asking if he was speaking about the issue of Miranda rights being read to domestic terrorists like the man arrested in the course of attempting to blow up an airliner on Christmas Day 2009.
Graham deadpanned - cutting her off - "No, I'm just asking where you were on Christmas."
Prolonged guffaw from Kagan, who finally responded: "You know, like all Jews, I was probably at a Chinese restaurant."
3:45 ET:Graham now speaking about Kagan's role in cases regarding detainees. "Let's talk about the war," he said affably when introducing the tough topic.
3:44 ET: Graham mentioned Miguel Estrada's letter of support for Kagan. Estrada, a conservative appellate judge nominee whose nomination was nixed by Senate Democrats in 2003, urged her confirmation, writing that "Elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable."
Asked by Graham if Estrada is qualified to serve as an appellate judge, Kagan answered that he is.
"Well, your stock really went up with me," said Graham in response.
3:39 ET: Graham acknowledged that "elections have consequences," meaning that the president, once elected, has the right to nominate judges of his or her own ideological stripes. Kagan agreed.
3:36 ET: Ninety seconds into his questioning, the often folksy Sen. Lindsey Graham has already made the room burst into giggles more than once. Citing Kagan's 1995 complaint about the lack of transparency in confirmation hearings, he asked if she believed the current panel has improved on the hearing model: "So, it's all those other guys that sucked, not us," he deadpanned in response.
3:34 ET: Very tough questioning from a very curt Sen. Specter. He was visibly frustrated that Kagan wouldn't answer a question about whether or not she would have elected to hear a case about terrorist surveillance.
3:32 ET: Sen. Graham has taken his seat on the dais, just in time. (Specter has about 2 minutes of questioning left.)
3:28 ET: Specter liked what he heard from Kagan about putting cameras in the Supreme Court. (She said earlier today that it would be "a terrific thing" if the court's arguments were televised.)
Specter said that "we may be getting closer" to legislation that would require the court's proceedings to be available to media outlets' cameras.
"From all perspectives, televising would be a good idea," Kagan agreed.
"It means I'd have to get my hair done more often," she added.
"You have shown a really admirable sense of humor," said Specter in reply after a long, laughter-filled pause. The joke made him crack a smile for the first time today.
3:18 ET: Kagan, in response to yet another question about Citizens United:"It's a little bit difficult to take off the advocate's hat and put on the judge's hat."
3:17 ET: Specter, frustrated: "I don't think I'm making too much progress."
3:11 ET: Specter appears impatient with Kagan's reluctance to answer many of his questions directly. He's a notoriously tough questioner who has served on the Judiciary Committee for 30 years. His interrogation of Kagan might have been more tempered if he was still in the midst of a hard-fought primary in his home state, but he lost the Democratic nomination after being defeated by Rep. Joe Sestak on May 18.
3:09 ET: Sen. Arlen Specter, D-Penn., is up. He used to be the Republican chairman of this committee, before he lost his seniority when he switched parties last year. He's now ninth in the hierarchy.
3:04 ET: Mood a little lighter after this: Kagan notes that her kind words about Barak were spoken when the Israeli judge was at her school to accept an award. "If you had come to Harvard Law School, I would have given you a great introduction too," Kagan told senators with a little smile.
"Now Sen. Grassley has something to look forward to!" exclaimed Leahy.
3:03 ET: Leahy and Sessions scuffling a little bit about Leahy rebutting each GOP witness after questioning. (He'd just jumped in to note that conservative Justice Antonin Scalia has also spoken highly of Barak). Low whistles of surprise from the press corps...
2:58 ET:Responding to criticism of her admiration for Israeli Supreme Court judge Aharon Barak, Kagan said that she admires his leadership in the Israeli government but added that she in no way believes that "his ideas ... should be transplanted to the United States."
"I am Jewish. The state of Israel has meant a lot to me and my family." she noted.
2:53 ET: Grassley's line of questioning about international law is one that's come under fierce debate among legal scholars. Steven Duffield, a former chief counsel for Sen. Jon Kyl and Judicary Committee analyst for the Senate Republican Policy Committee, told me last week that "the question of foreign law has become a proxy battle for the elites versus the people, as far as many Republicans and conservatives are concerned."
2:48 ET: Grassley asked Kagan how much weight she thinks the laws of other countries should have in judicial decisions. Kagan responded that international law should not be given "independent precedential weight." She advised that lawyers should look "where ever you can find ... good ideas” but that other nations' laws should be evaluated separately from the all-important American Constitution.
2:34 ET: In a question about gun rights, Grassley zeroed in on a statement Kagan wrote in 1987, when she was clerking for Thurgood Marshall. She wrote in a memo that she was “not sympathetic” to an appeals request from a man who said that his rights had been violated after he was convicted for unlawful possession of a pistol. The man's argument was similar to the complaint that prompted the landmark Heller case that overturned the D.C. handgun ban.
Kagan said that her view of the 1987 appeal would be dramatically different now that the Heller case is settled law.
"I do think that Heller is the law going forward," she said. "I accept the court's analysis and will apply it going forward."
2:29 ET: The nominee is back in the room. She smiled and answered in the affirmative to Leahy's question: "Did you get a chance to get some lunch?"
2:26 ET: Chairman Leahy's back on the dais. We're almost ready to start up again.
2:14 ET: After the break, we'll hear questions from Sens. Grassley, Specter, Graham, and Schumer. The one to watch is Republican Sen. Lindsay Graham, who yesterday blunted some of his own party's attacks on Kagan's past as a political aide but did not indicate how he plans to vote on her confirmation. He was the only GOP member of the committee who voted to confirm Sonia Sotomayor.
1:59 ET: The cameras. The crowds of Wifi-demanding, information-gobbling reporters. The security and logistics. Ever wonder how much a confirmation hearing costs?
As the National Law Journal reported last month, the committee has set aside an additional $300,000 to cover the costs of the Kagan hearing.
1:50 ET: Your live-blogger is back from a quick break, and the full hearing will be resuming in about 30 minutes.
The most contentious exchange of the day so far has been the back-and-forth between nominee Kagan and Sen. Jeff Sessions, the top Republican on the panel. He questioned her on her role in banning military recruiters from using an on-campus placement center at Harvard Law School. The ban was a reaction to the military's "Don't Ask, Don't Tell" policy, which school officials said violated non-discrimination policy. Kagan said that the recruiters had "full and good" access to students during her deanship. Sessions countered that Kagan treated the recruiters in "a second-class way."
Watch the whole exchange below:
1:03 ET: The hearing has stopped for a lunch break. Chairman Leahy estimated that we'll resume around 2:20pm ET.
12:58 ET: Wondering where the Supreme Court justices are from? Of the eight current members, three were born in New York (Sotomayor, Ginsberg, Roberts), two in Trenton, NJ (Scalia, Alito) and two in California (Breyer, Kennedy). Only one, Justice Clarence Thomas, is from a rural community; he hails from Pin Point, Ga.
12:51 ET:Feingold recalled that he joked with now-Justice Sonia Sotomayor during her confirmation hearing, delivering a dig that Sotomayor's New York Yankee fandom rendered her too distant from the lives of everyday, small-town Americans whose hometown baseball teams lose year after year. "I understand you're a Mets fan. At least that's more of an underdog," he told Kagan.
He went on to note that his constituents question why so many of their Supreme Court justices are from the East Coast. (Yesterday, in his opening remarks, Feingold said that he hopes to see more geographic diversity on the court in the future.)
"I hope I have always been a person who's been able to see beyond my own background," Kagan said in response.
12:45 ET: Kagan, discussing the interplay of the three branches of government: "When it comes to policy, it ought to be Congress and the president that do the policy-making." Courts, she added, must respect the other branches' areas of jurisdiction.
12:40 ET: On yesterday's court decision that struck down the Chicago gun ban, Kagan said that she hasn't read the opinions from the court yet.
12:31 ET: Kagan stuttered a little bit in her effort to respond to a question broached by Sen. Feingold about how the Citizens United case was treated by the Supreme Court. (Before the landmark decision, the court asked that attorneys on both sides of the debate return to argue the case a second time with a broader focus about the fundamental underpinnings of campaign finance laws.) After starting and stopping her response a few times, she carefully replied: "As the case came to the court, it did not address the issue that the Court ended up deciding."
12:30 ET: Sen. Russ Feingold, D-Wisc., is up next. He'll likely question the nominee at length about Citizens Unitedas well; his name was on the legislation (McCain-Feingold) that the court essentially gutted in its ruling on that case.
12:18 ET: Asked about a hand-written noteshe wrote while serving in the Clinton White House, Kagan said that a scribble that compared the NRA to the KKK was simply a note quoting another speaker on a telephone call, not her own view. "It was just telephone notes ... That would be a ludicrous comparison," she said.
12:15 ET: Asked if she would characterize the current court as too "activist" when it comes to decisions that favor big business, Kagan responded "I don't want to characterize the court because someday I hope to join it."
"And they said you're not political," a smiling Kyl responded as laughter erupted in the room.
12:07 ET: Questioning again turns to Kagan's admiration of the late Justice Thurgood Marshall. TPM's Christina Bellantoni did the count yesterday and found that Marshall's name was uttered 35 times in yesterday's opening statements.
"If you confirm me to this position, you'll get Justice Kagan. You won't get Justice Marshall," Kagan said today.
12:05 ET: Kyl cited a quote by Chief Justice John Roberts, who said during his confirmation hearing:
"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."
Asked if she agreed with Roberts on that point, Kagan responded, "Yes, senator, I do."
12:02 ET: Kyl asked Kagan about the Obama administration's often-used talking point about protecting "the little guy" against big corporations. "Courts have to be level playing fields," she responded. "Everybody has to have an opportunity to go before the court ... and get the opportunity to make his best case and get a fair shake."
11:58 ET: Kagan, Leahy, and - of course - the press had to come back for an hour before lunch, but not every member of the committee returned. There are only seven of the 19 committee members seated on the dais now. "You can see how important my colleagues think my questions are," Kyl joked.
11:57 ET: And, we're back. We're told it'll be about an hour until lunchtime. Sen. Jon Kyl, R-Ariz., is next up.
11:46 ET: We're in a 10 minute break now, which means it's time for History Facts! Check out our post on how confirmation hearings have changed over the past 100 years.
11:37 ET:Sen. Sessions took a break from sitting on the dais to do an interview on CNN. Msnbc.com Political Editor Vaughn Ververs was watching and reports:
Sen. Sessions questioned Kagan’s “intellectual honesty” in regard to her response to questions about her role in the military recruiting ban at Harvard. Sessions called her version of events “an attempt to alter the reality of the situation” and said he was “disappointed” she was not more “forthcoming” on the issue. “I don’t think she helped herself with that testimony today,” he said. Pressed several times on whether the issue would be enough to consider a filibuster, Sessions would not commit but added, “I’m more troubled by her nomination today than I was when we started.”
11:31 ET: There's been a lot of talk in this hearing room today about campaign finance and the Citizens United decision. But even as the rules of political campaign funding were being chewed over by committee members in this room, there was news breaking in the outside world on the legal campaign finance beat.
From the AP:
The Supreme Court on Tuesday reaffirmed a ban on unlimited contributions to political parties, rejecting a Republican Party appeal to undo a major aspect of campaign finance law.
Five months after the court ruled in favor of unlimited corporate and labor spending in federal elections, the justices on Tuesday turned down a request to consider ending the ban on the raising of soft money — unlimited donations from corporations, unions and others — by national party committees.
The soft money ban was a cornerstone of the 2002 congressional overhaul of federal campaign finance law.
11:22 ET: My colleague Domenico Montanaro points out: Feinstein is now pressing Kagan about presidential power, which was one of the issues that raised concerns among liberals when Obama picked Kagan for the court. Some liberals expressed concern after her nomination because she had said little to date about how much power the president has to detain and interrogate terrorism suspects.
11:14 ET: Feinstein's first line of questioning is about gun law, an issue that she says she has sadly been "too close to.""seen too much." She noted that she became the mayor of San Francisco after the current mayor and a city supervisor were assassinated in 1978. (That city supervisor was Harvey Milk, the openly gay politican whose life was the subject of an Oscar winning film.)
Feinstein asked about two recent gun rights cases, including the landmark District of Columbia v. Heller, which struck down the city's gun ban.
"Once the court has decided the case, it is binding precedent," Kagan responded. She noted that precedents can be overturned for a variety of legal reasons, but that the law of precedent is "enormously important."
11:11 ET: Another lighthearted moment: Feinstein told Kagan, "I want to have a little heart-to-heart with you."
"No one else listen," a grinning Leahy instructed the rest of us.
11:09 ET:Sen. Dianne Feinstein, D-Calif., will be the last to quiz Kagan before a 10 minute break.
11:08 ET: Hatch: "I get a little tired of people misstating what Citizens United was all about." Yesterday, Sessions said that Democrats were "distorting" the meaning of the case.
10:59 ET: Speaking of primary races: Hatch himself may have one when he's up for re-election in 2012. GOP Rep. Jason Chaffetz has hinted that he may launch a challenge against the incumbent senator -- a prospect that may seem more alarming to Hatch after watching his Utah colleague Sen. Bob Bennett ousted by his own party mere weeks ago.
Hatch was one of seven Republicans who voted for Kagan as Solicitor General last year. But his looming re-election may make him more reluctant to support Kagan this time around.
10:54 ET: Speaking about how special interests influence political campaigns, Hatch brings up Arkansas Sen. Blanche Lincoln's Democratic primary challenge. Her opponent, Lt Gov. Bill Halter, benefited from the support of labor unions who contributed about $10 million towards the effort to unseat her. (Lincoln won the runoff election against Halter on June 8.)
10:48 ET: Big laugh in the hearing room: After a brief scuffle about questioning with his colleague Sen. Leahy, Hatch quipped: "We have to have a little back and forth every once in a while, or else this place would be boring as hell."
Kagan smiled broadly and responded that she doesn't mind anything that takes the spotlight off of her for a few minutes.
10:43 ET: Sen. Orrin Hatch, R-Utah, is next up for questioning. Hatch's questions so far have centered on Citizens United vs. Federal Election Commission, the recent Supreme Court decision that vastly expanded how corporations can use their general treasury funds to advocate for political campaigns. Kagan was one of the attorneys who argued that case - unsuccessfully - as Solicitor General before the Supreme Court.
10:35 ET: Some West Wing pushback: Shortly after she faced fierce questioning about her attitude towards the military, the White House posted on its blogan essay from a Harvard Law School student who served in the Army for five years before enrolling at the school in 2007. He writes: "Elena Kagan has recently comeunder attack as someone who is anti-military. To place such a label on Ms. Kagan is unfair and ill-informed."
10:32 ET: Kohl asked how Kagan feels about putting television cameras in the Supreme Court. (Currently, the proceedings are closed to cameras; reporters can't even bring voice recorders or Blackberries into the room for oral arguments.)
Kagan responded that she would have to talk to the other justices about their feelings on the issue. But, she added, "I think it would be a terrific thing to have cameras in the courtroom ... when you see what happens there, it's an inspiring sight."
10:25 ET: Kohl asked which direction Kagan believes she would move the court, but she declined to answer. (Yesterday, Kohl noted that Kagan's judicial philosophy is "almost invisible to us.")
10:19 ET: Kagan earned a knowing chuckle from those in the committee room who have been hearing a lot about that 1995 book review in which she was critical of the judicial confirmation process. (You can read the whole paper here.)
Kohl prefaced a question on the subject with: "I think it's a good time to ask about" that paper now.
"Yes, it's been a half an hour!" Kagan responded.
10:14 ET: Three members of the Senate Judiciary Committe are going to have particularly busy days, because they also serve on the Senate Armed Services Committee - the panel that will hear from Gen. David Petraeus today in his confirmation to replace the recently-resigned Gen. Stanley McChrystal. The three members are Sens. Sessions, Kaufman, and Graham. None of them are in the committee room now.
10:09 ET: Kagan gets a respite from Sessions' relentless questioning. It's now time for inquiry from Sen. Herb Kohl, D-Wisc.
His first question? Why do you want to be a Supreme Court justice? "I'm sure you're a woman of passions. Where are your passions?" he asked.
10:03 ET: "I am a little taken aback by the tone of your remarks," Sessions said as his time for questioning expired. "If you had any complaint it should have been made to the United States Congress," not to members of the military, he said.
10:02 ET: Kagan: "All I was trying to do was to make sure that Harvard Law School could also comply with its anti-discrimination policy" for the sake of gay and lesbian students while also following federal law. Recruiters had "full and good access" to students during her deanship, she said.
10:00 ET: More Sessions: "You were taking steps to treat [military recruiters] in a second-class way."
9:59 ET:"Senator Sessions, we did what DOD asked for," Kagan says.
"In fact, you [were] punishing the military," Sessions counters.
9:52 ET: From our preview piece yesterday, here's some background about the Solomon Amendment, which Sessions is pressing Kagan about now:
In 2003, when she was the dean of Harvard Law School, Kagan called the military's "Don't Ask, Don't Tell" policy "a moral injustice of the first order."
At the time, the school had a ban against on-campus recruiting by organizations that practice hiring discrimination, but Harvard did not enforce the ban against the military because a federal statute — the Solomon Amendment — would have required the school to give up federal funding if it banned military recruiters.
When an appeals court ruled that the Solomon Amendment was unconstitutional, Kagan immediately required that military recruiters collaborate with a student group rather than use a campus placement center. The court decision was eventually nullified, but Kagan continued the modified ban until the Department of Defense threatened to pull funding for all of Harvard University. She also signed on to a brief challenging the military's policy; the argument that she backed was later resoundingly rejected by the Supreme Court.
9:49 ET: Kagan said that she personally opposes the "Don't Ask, Don't Tell" policy - which prohibits gays and lesbians from serving in the military - and called the policy "unwise and unjust."
"I believed it then and I believe it now," she said. (She called the policy "a moral injustice of the first order" during her tenure as the dean of Harvard Law School.)
9:48 ET:Msnbc.com Political Editor Vaughn Ververs points out about Chairman Leahy's opening questions: Taking advantage of being first, Sen. Leahy teed up someof the expected lines of Republican attack for Kagan: Her thoughts on what the framers thought about changes in the Constitution; the ban on military recruitment at Harvard; her article suggesting nominees should display more candor in these hearings and her past political work. It won’t stop Republicans from continuing to probe on these issues but one of the roles of the majority members in this hearing will be to help her formulate and advance her defense.
9:45 ET: Kagan and Sessions now going back and forth of the issue of military recruiting at Harvard Law School. Sen. Sessions has been cutting off several of her answers; Leahy pressed him to allow her to finish.
9:42 ET: Sessions just referred to Kagan as "a legal progressive." Kagan responded: "I honestly don't know what that label means."
9:38 ET: Sessions asked Kagan about her service as an aide to two Democratic presidents. Kagan's response: "I'm not quite sure how I would characterize my politics" but she went on to vehemently promise that her politics "would be, must be, have to be ... separate from my judging."
The exchange prompted lots of furious typing over here at the press tables.
9:37 ET: Sen. Jeff Sessions, the leading Republican on the committee, is now questioning the nominee. He was highly critical of her lack of judicial experience and her tenure as a political aide during his opening statement yesterday.
9:33 ET:Kagan says "I've cried only one time throughout this process." She said she teared up when she read this supportive op-ed by Robert Merrill, who was the only active-duty service member to have received a JD from Harvard while Kagan was the dean.9:29 ET: Kagan: "I am confident that the military had access to our students, and the students had access to the military throughout my entire deanship" of Harvard Law School.
9:26 ET: First mention of gun rights and Second Amendment issues of the day comes in response to a question from Leahy. She called a recent landmark gun rights case "binding precedent."
9:25 ET: Kagan, who has served as the federal government's lawyer (the Solicitor General) for the last year, spoke about situations in which she might have to recuse herself from ruling on a Supreme Court cases that she substantially participated in as a government official. She said that she would recuse herself from cases that she was involved in or publicly approved.
9:17 ET: Kagan discussed a 1995 book review (frequently cited by senators yesterday) in which she called confirmation hearings "a vapid and hollow charade." She said that she stands by some of that criticism and pledged to be transparent in her responses about her judicial philosophy. "That's my excuse for giving you a little bit more even than you wanted about Constitutional change," she said -- noting that she returned to one of Leahy's initial questions to speak more on the subject of her judicial philosophy.
But she underscored that it would not be right for her as a nominee to discuss how she would rule on specific cases during the hearing. "In particular. it wouldn't be appropriate for me to talk about what I think about past cases, to grade cases" because those cases themselves might come before the court again, she said.
9:13 ET: In her answer, Kagan discussed how some rules in the Constitution are very specific -- like the minimum age required to be a senator, while others -- like the idea of "unreasonable" searches -- require interpretation. Kagan said that all lawyers should apply the Constitution as written. In some sense, she said, "we are all originalists."
9:09 ET: Leahy's second question: He asks about critics' wariness about her admiration for Justice Thurgood Marshall, whom conservatives yesterday called "a well-known liberal activist judge."
"How would you describe the way the Constitution has been amended since it was written?" Leahy asked.
9:07 ET: Kagan's father was a lawyer, and her mother, Gloria, was a fifth and sixth grade teacher. Her father died in 1994; her mother passed away two years ago.
9:03 ET: Leahy's first question: He asks Kagan to discuss her parents' influence on her and their values about teaching and the law. Kagan began her response by saying the question offers her "a wonderful opportunity" to speak about her family's influence on her.
9:01 ET: Kagan just entered the hearing room and took her seat. Chairman Leahy has gaveled the hearing to order.
8:45 ET: Good morning from inside the hearing room, where we'll be live-blogging the second day of Supreme Court nominee Elena Kagan's confirmation hearing.
After yesterday's mostly scripted opening statements, today's questioning promises to be a bit more substantive and unpredictable. In the first round of questioning, each member of the committee will have 30 minutes to quiz Kagan on her judicial philosophy and her views on a host of issues -- from on-campus military recruiting and Don't Ask Don't Tell to gun rights and abortion.
Visit this page throughout the day for updates on the latest news.