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Live-blogging Kagan, Day 3

Msnbc.com's Carrie Dann writes:

5:43 ET: That's all from this live-blog, everybody. Tomorrow, outside witnesses will testify before the committee, but Kagan will not be on the stand.

Thanks to everyone for reading over the past few days. It's been a pleasure to write this blog and to read your comments.

On the horizon, stay tuned to the Senate Judiciary Committee's full vote on Kagan's confirmation, which will occur sometime after the Senate returns after the July 4 recess next week. A majority of the committee is expected to vote in her favor, after which the full Senate will vote on her confirmation.

And don't forget to visit First Read often for analysis and breaking news on the nation's top politics stories.

5:40 ET: We stand in recess.

5:38: In the chairman's final statement, Leahy cited Kagan's promise to faithfully and fairly interpret the law. "Solicitor General Kagan: I believe you."

5:36 ET: More Leahy: "I told my wife last night, I wish I was back in law school taking a course with you." Said her knowledge of the law is "encyclopedic."

5:35 ET: Leahy said he has never regretted his vote in favor of a Supreme Court nominee who was nominated by a Republican president.

5:34 ET: Leahy, in concluding remarks: "You've answered their questions more fully than perhaps recent nominees."

5:32 ET: "This Senate has a very serious responsibility at this time, when people are deeply worried about our Constitution and [the question of] is it being followed," said Sessions. Kagan's record and statements during the hearing have left him "uneasy," he said.

5:28 ET: In closing remarks, Ranking Member Sessions mentions the hearing's debates over foreign law, the Commerce Clause, abortion, national security, gun rights, judicial activism, and military recruiting.

5:27 ET: Coburn is done with his questions. 'Three minutes early!" he exclaims. "God bless you," Leahy replies.

5:24 ET: After Coburn finishes his questions, the committee will go behind closed doors, where they will discuss Kagan's FBI file. No press allowed there. Kagan is in the home stretch now; she won't be back on the stand tomorrow.

5:21 ET:Wrapping things up, Coburn complimented Kagan on the proceeding of the hearings. "Everybody has been very fair and very considerate," she responded. "I found it somewhat wearying, but actually a great moment in my life."

5:14 ET: After a not-unfriendly squabble over how much time he should have to ask questions, Sessions alluded to Grassley's expected ascention to the committee's ranking member spot next year. "He could be ranking member next year," Sessions said to Leahy, "So be nice."

5:13 ET: Grassley asked about the constitutionality of the Defense of Marriage Act. Kagan, as she has earlier today, declined to answer, saying that such a question is likely to come before the court soon.

5:08 ET:Sessions' questions - including two on foreign law - have concluded. Chuck Grassleyis next. We're into the third round right now, but it appears that only Grassley and Coburn (both Republicans) are going to take the opportunity to speak.

5:04 ET:Chairman Leahy is getting a little bit impatient with Sessions' questions; he wants to start the closed-door session with Kagan as soon as possible. Sessions joked that Leahy is breaking his train of thought. "It's so easy. My brain is weak."

5:02 ET: More questions on military recruiting from Sessions. "I just remain troubled ... We can't seem to get in sync on that issue ... that's a big problem for me," he says.

5:00 ET: Sen. Jeff Sessions, the ranking member, up for a few more questions.

4:55 ET:After the conclusion of Franken's comments, Klobuchar jumped in to correct a previous statement. She said earlier this afternoon that there were no women serving in the U.S. Senate in 1980. "Many emails to my office" have alerted her to the fact that, in fact, Sen. Nancy Kassebaum of Kansas was serving at that time, she said.

4:50 ET: Franken brought up "Footnote Four" in the judicial opinion United States v. Carolene Products Co. To non-legally trained ears, that sounds about as in-the-weeds as one can get. From the Oyez Project, here's a description of why that footnote is controversial and important for constitutional experts (emphasis added)

In this otherwise unremarkable case, the Court planted the seeds for a new jurisprudence in a footnote to Stone's opinion for the Court. Here Stone gives a presumption of constitutionality to economic regulation. The Court would no longer substitute its views on economic policy for the views of Congress. Stone went further in footnote four by cautiously asserting that certain types of legislation might not merit deference toward constitutional validity. The most controversial element in the footnote was the suggestion that prejudice directed against discrete and insular minorities may call for "more searching judicial inquiry.

4:41 ET: "There is a place for judicial review in our legal system," Franken argues, drawing a distinction between 'activism' and 'review.'

4:40 ET:Kagan: "The 1st Amendment does not provide a general defense, I think, to the antitrust laws ... they apply to all companies."

4:35 ET: Now, Sen. Franken, D-Minn. He started off by saying that he's concerned about media consolidation, mentioning the pending Comcast/NBC Universal merger. (note: Msnbc.com is a joint venture of Microsoft and NBC.)

4:31 ET: On women in the legal profession, Kagan says: "There are structural obstacles ... It's hard to balance work and family."

4:28 ET: Sen. Amy Klobuchar, D-Minn., is up. She asks what Kagan thinks can be done about underrepresentation of women in the courts and governmental institutions.

4:26 ET: Out of time, Coburnasked if there will be a third round of questioning. Leahy told him that he could have another five minutes of questioning at the endof this round, as long as he asks questions and doesn't give "speeches" on his personal beliefs ("which I know you hold strongly," Leahy added.)

4:24 ET: Kagan to Coburn:"To be honest with you, I don't have a view of what 'natural rights' are, independent of the Constitution." More: "I think you should want me to act on the basis of law."

4:22 ET:Exhorted by Coburn to pay attention to the Federalist Papers, Kagan promised him that she will re-read them, calling them "a great document."

4:19 ET: Kagan notes that the court cannot address "big abstract questions" about the direction of the country; it must focus its attention on the discrete legal questions brought before it.

4:14 ET: "Most people didn't go to Harvard," Coburn says of Americans' confusion about interpretations of the law.

4:12 ET: Coburn, a conservative who is outspoken about the problems caused by a "big" and "broken" federal government, asked Kagan if she has contemplated Americans' lack of confidence in their leaders. She agrees that that it would be "better" for the country if more people had faith in the federal government.

4:09 ET:Sen. Tom Coburn, R-Okla., is next up.

4:06 ET: Asked if she would have voted to confirm Republican nominee Miguel Estrada, Kagan initially replied 'yes' but then qualified her answer.

"I hope so. Who knows what it feels like to be one of you guys?" Kagan said to the panel with a broad smile.

Her questioner, Sen. Coburn, admitted that sometimes, "it's not very much fun."

4:04 ET:Whitehouse calls Kagan "very bright, very good-humored, very well-intentioned, very able."

3:58 ET: Now questioning the nominee is Sen. Sheldon Whitehouse, D-R.I.

3:55 ET: We're back in. Leahy is explaining the schedule: Lawmakers will finish asking their questions tonight, and then will go into a closed-door meeting at which Kagan's FBI file will be discussed. Tomorrow, Kagan won't testify; the panel will hear from outside witnesses, some summoned by Republicans and some by Democrats.

Informed that her appearance before the panel will be done after today, Kagan cracked a smile.

"I can't come back?!" Kagan asked with mock incredulousness.

"If you're that much of a glutton for punishment, you're not qualified to be on the Supreme Court," Leahy jokingly replied.

3:45 ET: A walk outside the hearing room during the brief breaks in the proceedings can offer a window into all of the things that print and online reporters do to write stories -- other than, of course, sitting here and listening to the lawmakers and the nominee talking.

Many members of the press mill around the "stakeout" cameras set up outside the room, where lawmakers can go if they want to make statements to the press and take questions. Some chat on cell phones with their editors and bosses, debating what the "lede" (the main point) of their stories should be and what time they will be able to file them. Others look for quiet corners where they can interview experts and sources over the phone (a few were sitting cross-legged on the floor in the hallway during the break, checking their blackberries, talking on cell phones, and taking notes.)

3:43 ET: We're in the midst of a short break now.

3:33 ET: After, listing off a series of precedent cases that Republicans have asked Kagan about all of yesterday and today, the nominee betrayed a little bit of impatience with the repetition of the questions she's received.

"They are settled law. And I have no plan, no purpose, no agenda, no anything to mess with them," Kagan said.

3:26 ET: Cornyn asks: What was the purpose of Harvard's policy of banning military recruiters from its career placement center "other than to stigmatize the military"? He argued that, if the policy had no impact on the actual number of students recruited, then itsimply enacted a "separate but equal" mentality against the military.

Kagan said that the purpose of the policy was "to express support" for gay and lesbian students while also ensuring that students who wanted to join the military had access to recruiters.

3:23 ET: Cornyn is asking about military recruiting at Harvard. During the lunch break, Democratic Chairman Leahy described this issue as a "red herring"

3:15 ET: Cornyn's question about Marshall appears to have been a response to commentators who have been critical of Republicans' eagerness to disagree with the civil rights icon. An op-ed in today's Washington Post, for example, reads:

Far from being the out-of-the-mainstream caricature you seek to create, Thurgood Marshall deserves your unyielding gratitude andrespect. Among other things, he saved this nation from a second civil war.

3:10 ET: Cornyn asked if Kagan has read "any disrespect" into Republicans' comments about Marshall as an "activist" judge.

"I've gotten nothing but fairness and courteousness" from the panel, Kagan replied, adding that she takes "no offense" to anything that has been said during the hearing, on her own behalf or that of Justice Marshall's.

3:07 ET: Brief questioning from Cardin, including one question about detainee rights (Graham jumped in to offer his thoughts) and another about discrimination against students. Now on to Sen. John Cornyn, R-Texas.

3:05 ET: Next up, Sen. Ben Cardin, D-Md.

3:02 ET: Graham concluded his questioning of Kaganwith kind words for the nominee, saying that she has "accorded herself very well" throughout the course of the hearing. He said he's satisfied that her work as a political aide was always "ethical." (Reminder: He was the only Republican on this panel who voted for Sotomayor.)

2:57 ET:Graham just praised Justice Thurgood Marshall, who has been described as an 'activist' by many of his Republican colleagues. "If our people say that's 'activist' so be it," Graham said, making sure to add that he also admires Chief Justice Roberts - who has also been derided as an "activist" by Democrats throughout the course of the hearing.

Graham also said that he believes that the hearing has been "on the margins better, but not a lot better than they have been in the past."

2:56 ET:Graham pokes a little fun at both sides' demonization of 'activist' judges: "It seems to be that an activist judge is somebody who doesn't rule the way that we like," said Graham.

2:52 ET: Kagan on partial-birth abortion: "I had no agenda with respect to this issue."

"It is okay to have an agenda," Graham responded. "I think Alito and Roberts had an agenda" as lawyers for Republican administrations, he said.

2:48 ET:Graham asked if Kagan's treatment of military recruiters was a "political statement.:

'It was not, Senator Graham," Kagan replied.

2:47 ET: Graham affirms: "You can disagree with Don't Ask Don't Tell and still have respect for the military."

2:46 ET: "I couldn't even play football at Harvard," says Graham on the prestige of Kagan's alma mater.

2:44 ET: Here's what Graham was getting at: He asked if the same idea of changing precedents would allow the precedent of Roe v. Wade (the case that allows legal abortions in the first two trimesters) to be overturned in the future.

2:42 ET: Graham asked about how, under the doctrine of strict constructionism of the Constitution, the court could have decided to uphold and then to strike down the 'separate but equal' clause in cases 50 years apart. "Nothing changed in the Constitution word-wise, right?" he asked.

"Brown [vs. Board of Education]was not a thunderbolt from the blue," Kagan said, noting that precedents slowly changed between those two cases.

2:39 ET: GOP Sen. Lindsey Graham, whose back-and-forth with Kagan yielded some interesting answers and some chuckles along the way, is up next.

2:32 ET: From the New York Times, a little more context on the issue of foreign law, which has been brought up several times in the last three days. Chief Justice Roberts vehemently opposed the citation of foreign law during his confirmation hearing, saying this:

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country"

Justice Ginsburg, in remarks later that year, had a different take:

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor? ... You will not be listened to if you don’t listen to others.”

2:29 ET: More on foreign law. Republicans are wary that Kagan said yesterday that she thinks that the laws of other countries are useful in the mining of "good ideas," even though she believes that those ideas shouldn't be used to interpret American law.

2:22 ET: Now, a back and forth between Kagan and Kyl about whether there is a federal Constitutional right to same sex marriage. Kagan says that, in her hearings as Solicitor General, she said that she would be prepared to argue on the side of the current law, the Defense of Marriage Act passed in 1996.

2:21 ET: Kyl is bringing up a letter that Kagan and several other deans sent in objection to an amendment proposed by Sen. Graham that would have stripped courts of their ability to review the treatment and conviction of detainees at Guantanamo Bay.

2:14 ET: Worth noting about Specter, who objected today to Kagan's reticence in answering questions. He was a Republican at the time of her confirmation as Solicitor General. He voted against her confirmation. Here's what he said in explaining that vote, which occurred in March 2009 (his full statement is here.)

I think it is pretty plain that Dean Kagan will be confirmed. But I do not articulate this as a protest vote or a protest position but really one of institutional prerogatives that we ought to know more about these nominees; we ought to take their confirmation process very seriously.

“I think we have to pay a little more attention, andI’ve gone to some length to try to find out more about Dean Kagan. But in the absence of being able to do so and really have a judgment on her qualifications, I’m constrained to vote no.”

2:10 ET:Kagan's returned to the room. The only lawmakers here? Leahy and Sen. Jon Kyl, R-Ariz., the next to ask.

2:05 ET: And, we're back! We'll be getting underway shortly with more questions for Elena Kagan from lawmakers.

1:10 ET: We're now in recess for lunch until 2:20 pm ET. Your live-blogger will be back after a short break.

1:07 ET:Kagan responds firmly to Specter's criticism of her reluctance to comment on hypothetical situations or cases with which she's not familiar. "Senator Specter, you shouldn't want a judge who will sit at this table and who will tell you that she will reverse a decision without ... reading briefs, without talking to colleagues."

1:04 ET: As he was yesterday, Specter - a former Republican chairman of this committee and now a Democrat - is visibly frustrated with Kagan's reluctance to answer his questions. "You haven't answered much of anything," he said.

1:02 ET: Specter asked Kagan if she would agree to hear a case about electronic surveillance. She said that she has not read the petitions andread the legal background of the case in the same way that she would if she was a judge.

12:58 ET:Kagan declined to answer one of Specter's questions, noting that she's been active in the case at hand as Solicitor General, a job to which she would return if not confirmed. "I don't want to count my chickens before I am confirmed," she said.

"You're counting your chickens right now," Specter replied wryly. "I am one of your chickens, potentially."

12:55 ET: Sen. Arlen Specter, D-Penn., will be the last questioner before the lunch break.

12:47 ET:Grassley asked about whether states have jurisdiction over the issue of same sex marriage. Kagan declined to answer, noting that the issue is likely to come before the Supreme Court soon.

12:44 ET:Grassley: "Is self-defense a pre-existing right?" Kagan responds that the recent Heller gun rights decision affirms that self-defense is the core of the 2nd amendment right.

12:44 ET: From the press table: About once every 20 minutes or so, aides who work for the Republican or the Democratic staff of the committee silently walk up and down the aisles of the press tables to distribute paper copies of the news reports, fact checks, letters, and other documents that members have mentioned during the course of the hearing. Even more information for reporters to sift through as they file their stories.

12:40 ET: Kagan notes that she has been careful not to point out where she may think there have been "deficiencies" in past Supreme Court cases.

12:36 ET: Interesting piece of trivia in yesterday's Kagan story in Grassley's home state newspaper, the Des Moines Register.

Grassley voted against the Supreme Court confirmation last year of Sonia Sotomayor, who, like Kagan, was nominated by President Barack Obama. Until then, he had voted to confirm all 11 high court nominees who had come before him on the committee.

12:34 ET: Next up: Sen. Chuck Grassley, R-Iowa.

12:32 ET: The vote, by the way, on the Petraeus confirmation mentioned below was 99-0. Members who were out of the room to vote are trickling back in now.

12:31 ET:More from Feinstein: "You're a wonderful role model for women." Noted that she should have said the same to Justice Sotomayor during her confirmation hearing but didn't get the chance. "You do us all well," Feinstein said.

12:31 ET: (When Feinstein first joined the Senate, she said, only 2 women served in the whole body. Now there are 17.)

12:30 ET: Feinstein, one of two women on the panel, just noted that only 48 of the 163 active federal appeals judges are women.

12:28 ET: "You have a wonderfully well-ordered mind," Feinstein tells Kagan.

12:25 ET: Can a taxpayer sue the federal government simply by virtue of being a taxpayer? Kagan's speaking about the argument for and against now.

12:20 ET: Count of members present: Just two! Only Sens. Feinstein, whose turn it is for questioning, and Grassley, who's up next, are in the room. The reason? The other members had to go to the Senate floor to vote on the confirmation of David Petraeus to be the next commander of the war in Afghanistan.

12:13 ET: Sen. Feinstein, D-Calif., is next for questioning. She's only got one question to ask. she just announced. Several of the Democrats plan to waive their chance to speak today in order to wrap the questioning up faster.

12:11 ET:How likely is Kagan's confirmation as a justice? Sen. John Cornyn, a Republican, reportedly referred to her as "soon-to-be Justice Kagan" during remarks outside the hearing room. (Via Tribune's Mike Memoli)

12:09 ET:In that partial-birth abortion, Kagan and her colleagues advised Clinton to support a ban on the procedure as long as it included an exemption for women whose health would otherwise be at risk. Here's the memo, via the Wall Street Journal.

12:04 ET:Hatch, a vigorous opponent of abortion, is now asking Kagan about her views on partial-birth abortion. "I'm stunned by what appears to be a politicization of science," in a memo that Kagan wrote while working in the Clinton White House about the medical necessity of abortion, he said.

12:01 ET: Hatch is taking issue with Kagan's insistence that military recruiters had "full and good" access to students when they were banned from Harvard's Office of Career Services. He cited a 2002 email from a recruiter, who wrote that the policy meant that recruiters were "relegated to wandering the halls in hopes that someone will stop and talk to us."

11:56 ET:Kagan is talking about a First Amendment case that she argued as Solicitor General, United States v. Stevens. The decision struck down a law that made it a crime to produce or sell videos depicting animal cruelty.

"I hesitate to criticize Congress's work but [the statute] was not drafted with the kindof precision that made it easy to defend from a First Amendment challenge," she said. Kagan called it "a hard case." The government lost it by a vote of 8-1.

11:54 ET: Hatch is speaking, once again, in defense of the Citizens United decision.

11:48 ET: Sen. Hatch, R-Utah, is up next. Leahy just spoke for a few minutes about the support that members of the military have shown for Kagan's nomination.

11:43 ET: Now we know what Sessions and Franken were laughing about during the break, by the way. Per a tweetfrom MinnPost's Derek Wallbank, Sessions asked Franken if he could have a sketch that Franken drew of the ranking member during yesterday's hearing. (Franken said yes.)

11:42 ET: Sessions is now asking about Kagan's views about the Commerce Clause (see note at 11:17 below).

11:38 ET:In 2005, Kagan signed on to a legal brief, signed by a group of school deans, that argued against the validity of the Solomon Amendment. Here'sthat document. The Supreme Court roundly dismissed the arguments made in the brief. Kagan is speaking about this now.

11:36 ET: "We engaged with very serious discussions with the Department of Defense" during her deanship, said Kagan.

11:34 ET: Here's the actual text - from the U.S. Code - of the Solomon Amendment.

11:29 ET: You'll hear a lot in the next few hours about the Solomon Amendment. It's a rule that says that universities cannot receive federal funding if they do not allow military recruiters on their campuses. Republicans say that Kagan violated that rule during her tenure as dean at Harvard Law School. Harvard officials viewed the Don't Ask, Don't Tell policy as discriminatory towards gay and lesbian students.

Democrats argue that Kagan developed a reasonable compromise during the time that the amendment's constitutionality was being questioned. She allowed military recruiters to work with a student group to gain access to students, but barred them from using a campus career placement center.

11:27 ET: Sessions said that he was "disappointed" with Kagan's answers on the issue of Don't Ask Don't Tell and the Solomon Amendment yesterday. Also did not appreciate the White House's "spin," about her responses, he said.

11:25 ET: We're back. Ranking member Sessions is up. He's the Republican who prompted yesterday's testiest exchange with Kagan over the issue of military recruiting.

11:17 ET: Republican Sens. Kyl, Cornyn, and Coburn are holding a press conference outside the hearing room now, criticizing Kagan for failing to be forthright in her answers to their questions. They also said that they're concerned that she has shown "too much deference to Congress" in her interpretation of the Commerce Clause -- something that you can expect to be brought up more as the hearing progresses. (That's pretty much legal speak for saying that they think she would apply a big-government philosophy in her decisions.)

11:12 ET: Chatting and sharing some laughs during the break are two senators with very different politics: Sen. Sessions and Sen. Franken.

11:06 ET: After we return from the break in a few minutes, the second round of questioning starts. Each member has 20 minutes to ask Kaganquestions, compared to 30 minutes for the first round.

11:04 ET: Franken didn't use his full 30 minutes, yielding back about 90 seconds of his allotted time. Leahy said he hopes that Franken's brevity sets a precedent for the rest of the day. We're in a short break now.

11:02 ET: For as many times as the Citizens United case has been mentioned over the last few days, it's worth remembering the flap the debate over the case caused during the president's State of the Union address at the beginning of this year. When President Obama mentioned what he believed the consequences of that decision could be for the country, Justice Samuel Alito was seen in the audience shaking his head and mouthing 'not true.' Video.

10:57 ET: Franken, on Roberts/Scalia's majority decision on Citizens United: "I think they were legislating from the bench."

10:56 ET: Kagan agrees with Roberts' argument that cases should be decided as narrowly as possible.

10:51 ET: Franken was one of the harshest critics of the Roberts court in Monday's opening statements. He said then: "There is such a thing as legislating from the bench. And it is practiced repeatedly by the [Chief Justice John] Roberts court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans."

10:49 ET: Kagan says for at least the fifth time in the last three days about her role arguing Citizens United on behalf of the federal government as Solicitor General: "I approached this case as an advocate, not as a judge."

10:47 ET:One thing Kagan and Franken have in common: both are Harvard grads. Kagan graduated from Harvard Law in 1986. Franken got his Bachelor's degree there in 1973.

10:44 ET:Franken's questions so far have centered on labor and employment discrimination issues. Sen. Russ Feingold, D-Wisc., also asked about the case that Franken is discussing now: Rent-a-Center v. Jackson. You can read more about that case here.

10:36 ET: Sen. Al Franken, D-Minn., is the most junior member of the committee. Here's what the Washington Post's Chris Cillizza wroteabout Franken yesterday, in his piece on what to watch from the committee's members:

The Sotomayor hearings amounted to a public debut of sorts for the comedian turned Minnesota Democratic senator. And, while Franken did occasionally crack wise, he was generally a low-profile presence on the committee. With another year of Senate service under his belt, does Franken take a different approach to this confirmation? With liberals expressing some concernsabout Kagan's past policy positions (or, more accurately, her lack of past policy positions) will Franken take the mantle as liberal champion on the committee and try to draw her out?

10:28 ET: Leahy just said that we will take a short break after Sen. Al Franken, the last Democratic senator to question Kaganin the first round, speaks. We will not break for the Senate's noon vote to confirm Gen. David Petraeus as the top general in Afghanistan.

10:27 ET:Kagan: "I tried to use the bully pulpit whenever I could" as Harvard Law dean to encourage students to do public service and pro bono work.

10:23 ET: Kaufman: I have not met anybody in the last 20 years who does not believe that there is at least the appearance of corruption in the way we finance our campaigns.

10:19 ET: Kagan: "The worst thing that you can say about a judge is that he or she is 'results-oriented.'"

10:15 ET:Does the length of a precedent matter? Kagan says yes, because the more times that a precedent has been reaffirmed, the more solid its legal status becomes.

10:12 ET: Fun Kaufman fact: He's the only member of the Senate to have worked as an engineer. He worked for the DuPont company before he volunteered on Biden's first Senate campaign. He went on to serve as Biden's chief of staff for 19 years.

10:08 ET: Kaufman replaced now-Vice President Joe Biden on the Judiciary Committee. Biden was the top Democrat on the committee for 17 years; he was famously instrumental in defeating the nomination of conservative judicial nominee Robert Bork.

10:07 ET: Sen. Ted Kaufman, D-Del., is next up to question Kagan. He asked her about Republican allegations that she is "too political" to serve on the court because she worked for two Democratic presidents.

10:02 ET: Here's some background on the New York Times v. Sullivan case that Kagan and Klobuchar were discussing, from the comprehensive Oyez Project.

This case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors.


The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

The case was decided 9-0 for the New York Times in 1964.

10:00 ET: "I think people should be able to write anything they want about me, and I can't won't sue them for libel," Kagan said with a smile.

9:59 ET: Klobuchar, the daughter of a former reporter, asks Kagan about a First Amendment case involving libel law.

9:52 ET:Klobuchar has a lot of experience with the law; she served as the head prosecutor in Minnesota's largest county for eight years. She was rumored at one point to be on Obama's short list for Supreme Court picks.

9:47 ET: From earlier: Klobuchar joked that last night's premiere of the new hit film in the Twilight series did not go unnoticed in her house. (She has a teenage daughter.) The Minnesota senator said that she wanted to ask the nominee about the famous "Edward v. Jacob" case, referencing the two male leads in the series' plot.

9:42 ET:Questions about Roberts' 'balls and strikes' metaphor are interesting, because that statement became so widely used -- especially by conservatives -- after his confirmation hearing.

Some liberal lawyers who believe in a more expansive reading of the Constitution have been privately disappointed that Democrats have not more publicly articulated a more nuanced version of Roberts' ideal; one that takes into account the view that the judiciary should view the law through the lens of expanding citizens' liberty and equality.

9:36 ET:Klobuchar asked Kagan to evaluate Chief Justice Roberts' famous metaphor that judges should be like umpires who call 'balls and strikes.'

Kagan: "Like all metaphors, it does have its limits."

The ways in which the metaphor works, she said: "You expect the judge, like the umpire, not to have a team in the game ... Judges should recognize that they're not the most important people in our Democratic government."

But the limits of the the metaphor, Kaganadded, include that it "might suggest that the law is some kind of robotic exercise" Especially at the Supreme Court level, she said, "they're not easy calls."

9:34 ET:Next up, Sen. Amy Klobuchar, D-Minn. She's one of two women on the panel.

9:29 ET: One of the running themes of the week has been Kagan's sense of humor (her "Chinese restaurant" joke yesterday made it into almost every news report on the hearing last night.) Here's a roundup of the comedy from CongressDaily's Dan Friedman.

9:21 ET: If a legal precedent is "hotly contested," should it be more vulnerable to overturning? That's the question under discussion now.

9:19 ET: Some big recent Supreme Court rulings that were decided on a 5-4 split: The much-discussed Citizens United case, the Heller and McDonald cases that struck down city gun bans, and a freedom of association case which allowed a school that receives federal funding to reject official status for a group that discriminates on a religious basis.

9:13 ET: "Every justice has to do what he or she thinks is right on the law," Kagan responded. She warned against court decisions becoming "in any way a bargaining process." But, she also noted, the public will only trust the court if they believe that decisions are not made on a partisan basis. "I'm sure that everybody up there is acting in good faith," she said of the current court.

9:11 ET: Whitehouse asks "what do you think of all these 5-4 decisions" on the Supreme Court, wondering what can be done to foster more "reaching across the partisan divide on the court."

9:07 ET: Leahy's earlier popping of flashbulbs wasn't just a lawmaker playing Capitol Hill tourist. The chairman is an avid photographer, whose work has been published and displayedat exhibits in his home state, Vermont. (Leahy's also a scuba diving fanatic.)

9:06 ET: Sen. Sheldon Whitehouse, D-R.I., is the first Democrat to question Kagan this morning. He will have 30 minutes.

9:02 ET: Praising Kagan's "patience and good humor," Leahy notes that he he has "pushing the schedule pretty hard." The long days are in part a result of the funeral of the late Sen. Robert Byrd, who will lie in repose on the Senate floor on the Thursday. Sounds like the chairman hopes to complete all of the lawmakers' questioning today, leaving only the testimony of outside witnesses left to go.

9:01 ET: Giggles as Chairman Leahy leans over the dais to take a photo of the nominee. "Okay, back to my day job," he chuckles after putting his camera down.

8:59 ET: Kaganjust entered the hearing room, giving a cheery "good morning, everybody!" to the audience seated behind her.

8:52 ET: We're scheduled to get underway at 9 ET. First, four senators - all Democrats - will get their first chance to ask Kaganquestions this morning as the panel completes the first round of inquiries. The senators are: Whitehouse, Klobuchar, Kaufman, and Franken.

After that, the second round of questioning will get underway, beginning with Chairman Leahy and going all the way down the hierarchy, alternating between Democrats and Republicans. (There are seven Republicans and 12 Democrats on the panel). Each member will have up to 20 minutes to ask questions.

8:47 ET: Good morning from Hart 216. It's Day Three of the confirmation hearing for Supreme Court nominee Elena Kagan. We'll be in the hearing room all day for today's second round of questioning from the Senate Judiciary Committee's 19 members.

Stay with NBC's First Read for play-by-play and analysis.