Fans of late-1980s hip-hop sensation 2 Live Crew may remember a high-profile court case stemming from complaints that the group's lyrics were obscene. (The First Read team can't provide examples from the now-infamous album, As Nasty As They Wanna Be. This is, after all, a family website.)
But -- for anyone who likes 1st Amendment law, Supreme Court nominations, and DJ Mr. Mixx, you're in for a treat.
Supreme Court nominee Elena Kagan had a cameo role in that 1990 obscenity case; as a young lawyer in private practice, she co-authored an amicus brief on behalf of the Recording Industry Association of America, which argued that the group did not, in fact, appeal to the "prurient interest." (A district judge had earlier ruled the album obscene, and 2 Live Crew appealed the decision.)
In the brief, Kagan and her team argued that the legal definition of obscenity did not apply to the album because it did not "physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." Moreover, according to the brief's argument, "the Nasty recording, again considered in its entirety, has serious value."
"Official censorship, however popular, is antithetical to the 1st Amendment - and no less so when 'rap' music is involved," the brief concluded.
That argument seems to have worked. In 1992, an appeals court overturned the district court's obscenity ruling.
From NBC's Ellie Hall Rick Barber, the Tea Party Republican whose controversial "Gather Your Armies" ad seemed to advocate armed resistance against the Obama administration, has gone one step further in his latest Web video, called "Slavery." It features Dale Peterson of rifle-toting "Ag Commish" ad fame and Glenn Beck, compares the U.S. government to a slave system and even uses a shot from a Nazi concentration camp -- all in one video.
Barber also continues his conversations with men dressed up as historical American figures. He asks George Washington, "Mr. President, some argue that you would have been in favor of this tyrannical health care bill because you enforced the Whiskey Act of 1791, but that was an excise tax, levied to service the military debt incurred by the Revolutionary War, a legitimate function of government, correct?"
Washington nods, and Barber, a pool hall owner, then turns his attention to -- Abraham Lincoln.
"Hey Abe," he declares, "if someone's forced to work for months to pay taxes so that a total stranger can get a free meal, medical procedure or a bailout, what's that called? What's it called when one man is forced to work for another?"
A slightly worse-for-wear Lincoln replies gravely in a deep, drawn out rumble of a voice, "Slavery."
That's followed by a montage depicting scenes of slavery in America, prisoners in Nazi concentration camps, and ends on the iconic, "Arbeit Macht Frei" gate at the entrance of the Sachsenhausen camp.
We've said it more than once this midterm season, but according to First Read's Law, the first to bring up Nazis in politics, loses the argument.
Later in the video, several "founding fathers" join with Barber's "army" of supporters appear behind him, which includes an armed Dale Peterson, as he urges viewers "Don't be afraid. Fight for freedom so we can have morning in America again. Join our army of voters on July 13th ."
But wait, there's more. The video's "special Internet bonus features" include Tea Party viral video favorite Lewis Schaeffer singing the fourth verse of the Star Spangled Banner and Barber and Peterson commenting on Glenn Beck's theatrics.
Barber will face Martha Roby in a runoff on July 13 for the GOP nomination to oppose incumbent Alabama Rep. Bobby Bright (D) in November.
Barber defended his use of Nazi imagery, saying "Somebody has to say this. When Hitler took power, no one wanted to think that the Holocaust, the murder of 6 million Jewish people, was possible. I'm saying that you have to recognize and name tyranny when you see it. And I think people are finding out that I'm the candidate who's willing to speak clearly and not be afraid of sounding politically incorrect, and my opponent isn't that candidate."
In what must have been his longest, widest-ranging press event to date, Rep. Mark Kirk stood alongside several veterans at the Northbrook Renaissance Hotel and answered every question thrown at him by reporters.
Which is not to say reports were satisified with the answers.
On the point of most interest -- why he embellished his record and why he was avoiding the media -- Kirk said he would rectify his availability, but didn't issue any apologies or further clarifications.
"I was overbooked last week," Kirk said, by way of explaining why he wasn't available. As for his embellishments -- 10 at last count -- Kirk said the "scrutiny was appropriate" and that he "wasn't thinking" when he misstated his record.
As if the oil spill, economy, financial reform, potential energy legislation, "Don't Ask, Don't Tell" weren't enough, President Obama will make a major address Thursday on the need for comprehensive immigration reform.
Here's the White House's press release:
President Obama to Deliver Remarks on the Need for Comprehensive Immigration Reform
WASHINGTON- On the morning of Thursday, July 1, President Obama will deliver remarks on the need to fix our broken immigration system through comprehensive immigration reform at the American University School of International Service.
Republicans are poised to make significant gains this fall. They need to pick up 39 seats to take control of the House. It's unclear they will do that, but if they do Minority Leader John Boehner would likely become speaker, replacing Nancy Pelosi.
He was critical of the financial reform bill, saying it was akin to "killing an ant with a nuclear weapon;" He said health care should be repealed and would act to shut off the supply of money to the law; And he said the administration has overreacted to the Gulf oil spill, according to the paper.
Here are some excerpts:
On financial reform:
Boehner criticized the financial regulatory overhaul compromise reached last week between House and Senate negotiators as an overreaction to the financial crisis that triggered the recession. The bill would tighten restrictions on lending, create a consumer protection agency with broad oversight power and give the government an orderly way to dissolve the largest financial institutions if they run out of money.
"This is killing an ant with a nuclear weapon," Boehner said.
On the GOP:
"The American people have written off the Democrats. They're willing to look at us again."
On Washington leaders, he strikes a Tea Party tone:
"They're snuffing out the America that I grew up in," Boehner said. "Right now, we've got more Americans engaged in their government than at any time in our history. There's a political rebellion brewing, and I don't think we've seen anything like it since 1776."
On health care:
"We are going to do everything we can to make sure that this law and this program never really takes effect. They're going to need money from the Congress to hire these 20,000-plus bureaucrats they need to hire to make this program work. They're not going to get one dime from us."
On the oil spill:
Boehner said Obama overreacted to the BP oil spill in the Gulf of Mexico. The spill might warrant a "pause" in deepwater drilling, but Obama's blanket ban on drilling in the gulf -- which a judge overturned last week -- could devastate the region's economy, he said.
On Social Security:
"On Social Security, we're all livin' a lot longer than anybody ever expected, and I think raising the retirement age, going out 20 years not affecting anyone close to retirement and eventually getting the retirement age to 70 is a step that needs to be taken."
Is he suggesting "spreading the wealth"?
"We need to look at the American people and explain to them that we're broke and that if you have substantial non-Social Security income while you're retired, why are we paying you at a time when we're broke."
From NBC's Ken Strickland In a letter to Senate Banking Committee Chairman Chris Dodd and House Banking Chairman Barney Frank, Sen. Scott Brown (R) said he will not vote for the financial regulatory reform bill because it contains a $19 billion assessment on big banks. Brown says that amounts to "higher taxes."
"This tax was not in the Senate version of the bill, which I supported. If the final version of this bill contains these higher taxes, I will not support it," he writes.
"It is especially troubling that this provision was inserted in the conference report in the dead of night without hearings or economic analysis. While some will try to argue this isn't a tax, this new provision takes real money away from the economy, making it unavailable for lending on Main Street, and gives it to Washington. That sounds like a tax to me."
When asked if Brown would also vote with Republicans to maintain the filibuster on the legislation -- thereby depriving Democrats of the 60 votes needed to advance the bill to the final vote -- his spokeswoman referred us back a line in his letter: "If the final version of this bill contains these higher taxes, I will not support it."
From NBC's Kelly O'Donnell
Aides say the Byrd family has requested that the body of the late Sen. Robert Byrd lie in repose in the Senate chamber on Thursday.
Byrd's casket would be placed in the well of the Senate where he served longer than any other American in history.
This type of tribute has occurred a number of times but not since 1959. Byrd was the only member of the current Senate in office then. ***CORRECTION*** The last senator to lay in state in the Rotunda of the U.S. Capitol, was former Senate Minority Leader Everett Dirksen (R- IL), who died in 1969.
President Barack Obama with Federal Reserve Board Chairman Ben Bernanke in the Oval Office of the White House
From NBC's Athena Jones President Obama said Tuesday he believed the financial regulatory overhaul, which both houses of Congress are expected to vote on in the coming days, would pass.
The president made the remarks after an economic briefing in the Oval Office also attended by Federal Reserve Chairman Ben Bernanke and economic aides Christina Romer, Larry Summers, Peter Orszag, Jared Bernstein.
The passing of Sen. Robert Byrd (D-WV), who supported the bill, has called into question Majority Leader Harry Reid's ability to muster the 60 votes needed to pass it in the Senate. But when asked about the impact Byrd's death could have on the legislation, the president said that was not his concern.
"I'm concerned about fact that a giant of Senate and a personal friend of mine passed away," Obama said. "I don't think about that in the context of financial regulatory reform. I'm confident that given the package that has been put together that senators, hopefully on both sides of aisle, recognize it's time to put in place rules that prevent taxpayer bailouts and make sure that we don't have a financial crisis that can tank the economy and I think there's going to be enough interest in moving reform forward that we're going to get this done."
The president went on to call Byrd's career "unparalleled" and said he helped to transform the Senate. He said that Byrd's own personal transformation embodied the kind of changes in America "that have made us more equal, more just, more fair." Byrd was a one-time a member of the Ku Klux Klan and an opponent of civil rights, but later apologized for both actions.
"He will be sorely missed," Obama said of the man who entered the Senate in 1959, two years before the president was born.
Obama said the economy was strengthening, led by sectors like manufacturing, but that economic troubles in Europe had led to skittishness on the part of markets and investors and that more must be done to put people back to work, get credit flowing to small businesses and strengthen consumer confidence. He hailed his economic team and the relevant committee chairmen Sen. Chris Dodd (D-CT) and Rep. Barney Frank (D-MA) for their work on the revamp of the financial regulatory system and said that, in addition to other important changes, completion of the overhaul would provide certainty to markets about how the government would prevent a crisis like this from happening again.
After the president's statement, Bernanke spoke briefly, saying that the briefing had also covered how what has been happening around the world could affect the United States.
A debt crisis in Greece has sent ripples through several European economies, including Spain and Ireland, potentially threatening the global economic recovery.
For members of the Senate Judiciary Committee -- and for many of the veteran journalists squeezed into the Hart Senate Office Building today -- the Kagan hearing is proceeding pretty much like other confirmation debates always have. If anything, the only difference so far is that there are a few less fireworks this time around (so far, at least).
But this hearing would seem very foreign to a lawmaker or reporter who worked on Capitol Hill 75 years ago. For starters, nominees haven't always been required to testify in front of the Senate Judiciary Committee. The first hearings at which a Supreme Court nominee actually testified in person were Justice Harlan Stone's in 1925.
Confirmation hearings also haven't always been open to the public. They regularly held behind closed doors until the 1940s.
The first hearings to be broadcast in total on C-SPAN were Sandra Day O'Connor's in 1981.
The entire confirmation process also takes much longer in the modern era than it did early in the nation's history. According to the Congressional Research Service, between 1789 and 1966, it took a Supreme Court nominee about 10 days to be confirmed once his nomination had been received by the Senate. Between 1966 and now? Seven times as long -- a median of 69 days.
From NBC's Scott Foster NEW ORLEANS -- Vice President Biden has arrived here to see, first hand, the response efforts in his first trip to the Gulf Coast region since the BP oil rig disaster.
Biden was greeted at the airport by Gov. Bobby Jindal (R) and Rep. Joseph Cao (R).
As he waited for Biden to arrive, Jindal -- in an exclusive on-camera interview with NBC News this morning -- said his message to the vice president is that the federal government "needs a greater sense of urgency" and that it needs to treat the disaster "like a war and either lead or get out of the way."
Jindal said he's "thrilled" Biden is making the trip, but added he's frustrated that bureaucratic "red tape" with the permitting process has delayed efforts to narrow the coastal passes to prevent more oil from reaching Louisiana's shores.
Jindal says he wants to see more skimmers ahead of the storm brewing in the Gulf, which he warns will send waves of oil towards the coastline.
Jindal's other message to Biden, he says, is to get clarity on how workers looking to make claims as a result of the offshore moratorium can be compensated.
Petraeus and (more importantly) that July 2011 date take center stage beginning today at 9:30 am ET… 30 minutes earlier in the Senate building next door, Kagan and the senators can't read from a script from anymore; it's question time… Senate Democrats face another tough climb to get to 60 votes on the financial reform/Wall Street legislation… The importance of race and geography in the upcoming midterms… Obama discusses energy with bipartisan senators at 10:50 am… West Virginia Gov. Joe Manchin (D) gets to appoint a replacement for the late Robert Byrd through 2012… And Mark Kirk meets the press in Illinois.
From Chuck Todd, Mark Murray, Domenico Montanaro, and Ali Weinberg *** Petraeus and July 2011 in the spotlight: It probably won’t feature the theatrics (or histrionics) of the Kagan hearings, and there’s no doubt about its eventual outcome, but Gen. David Petraeus’ Senate confirmation hearing today to replace Stanley McChrystal as the U.S. commander in Afghanistan promises to be the day’s must-watch Washington event. The reason: There is a serious Washington disagreement about what should happen in Afghanistan come July 2011. On the one hand, you have House Speaker Nancy Pelosi saying that there will be a “serious drawdown” by then, and that she would even use the power of the purse to ensure the drawdown occurs. (Of course, she might not be speaker then.) On the other hand, you have Sen. John McCain, who said on “Meet the Press” this past Sunday: “We need the president just to come out and say, ‘Look, this is condition-based and condition-based only. We will leave tomorrow if the conditions are--allow for it. But we're not going to set an arbitrary date for withdrawal.’”
*** Déjà vu all over again: As for Obama, he has not used McCain's words -- but has all but said their meaning, especially in his press conference on Sunday, when he said he doesn't think about pulling troops out but about how can we be successful. For those who remember the Iraq debate of 2005-2007, it’s déjà vu all over again.
*** Kagan takes questions: Of course, the other big confirmation hearing today -- Elena Kagan’s -- begins its second day at 9:00 am ET. Yesterday’s action, as expected, was pretty uneventful and shows Washington in the worst light with long-winded statements and a flurry of press releases. (As TPM’s Josh Marshall asked, isn’t it time for comprehensive opening-statement reform?) Democrats (for the most part) praised Kagan; Republicans (for the most part) criticized her record and (bizarrely at some points) Thurgood Marshall’s; and Kagan (not surprisingly) gave opening remarks that emphasized her belief in judicial modesty, deference to Americans and their elected officials, her family’s immigrant past, and country, flag, and apple pie. The actual Q&A that begins today will surely bring us a fuller view of what Kagan believes. After all, she wrote 15 years ago that the public should be able to learn something significant about a Supreme Court nominee at these kinds of hearings. She has her own standard to meet, and we bet her words from 15 years ago are used in just about every attempt that ANY senator makes for a follow-up.
*** Another tough climb to get to 60: As was the case with health care, Senate Democrats getting 60 votes for final passage of financial reform hasn't been an easy exercise. First came word that GOP Sen. Scott Brown, who joined the Democrats in the eventual 60-40 cloture vote last month, is re-thinking his vote to fees and taxes in the conference bill. Then Sen. Robert Byrd, who also supported the legislation, passed away. Those losses could be made up if the two Dems who joined the GOP filibuster because it wasn't liberal enough -- Russ Feingold and Maria Cantwell -- change their minds from last month. But yesterday, Feingold said he was willing to block the conference bill.
*** Race and geography matter: There are a few reasons why Democrats are more likely to lose the House than the Senate, but one reason that hasn't received as much attention is the issue of race and geography. As it turns out, much of the competitive House battlefield is in mostly white and mostly rural congressional districts. And President Obama's numbers aren't strong here: According to our most recent NBC/WSJ poll, just 36% of whites and 31% of rural Americans approved of the president’s job (By the way, those numbers are about where George W. Bush was with whites from 2006 through 2008). On the other hand, Obama may very well be able to help in several Senate races that could determine the control of that chamber -- California, Pennsylvania (Philly), and Washington state, thanks to the fact his numbers are holding up with urban and minority voters.
*** Obama’s day: At 10:50 am ET, President Obama holds a meeting with a bipartisan group of senators to discuss energy/climate change legislation (which some are more pessimistic about every day, by the way). In the early afternoon, he meets and has lunch with Saudi Arabia’s King Abdullah. And then at 3:40 pm ET, he visits with members of the Congressional Hispanic Caucus -- in what appears to be his second conversation in two days on the issue of immigration. Yesterday, after meeting with immigration-reform advocates, Obama said that he would soon deliver a speech on immigration. Meanwhile, Vice President Joe Biden today is headed to the Gulf to inspect the oil spill; he visits New Orleans and Pensacola.
*** Byrd, Rockefeller, Manchin, and ideology: When you think about it, it’s striking how much more liberal Robert Byrd was -- and Jay Rockefeller currently is -- than much of the rest of West Virginia, where John McCain won 56% of the vote in 2008. And if Gov. Joe Manchin (D) eventually runs for Byrd’s seat in 2012, and wins the race, he’s going to be much more conservative than those two men, a la Mark Pryor and Mary Landrieu. Still, it’s a trade that many Democrats would probably make in a state that’s not necessarily trending Democratic. Bottom line: Don't expect Manchin's caretaker pick to be someone with the ideology of Rockefeller or Byrd, but someone who is more of a conservative Dem. And this person might not be as open to a climate bill as Byrd had become late in life.
*** The next George LeMieux/Ted Kaufman? But before Manchin runs, he must find a replacement to fill the seat through 2012. Yesterday, West Virginia Secretary of State Natalie Tennant announced that the state would hold its election to fill Robert Byrd's Senate seat in 2012, not 2010. In 2012, there will be two different elections for the seat: 1) for the full six-year term, and 2) to fill the unexpired five weeks of the term that ends in Jan. 2013. Manchin has ruled out that he would appoint himself. But if he wants to run for the seat in 2012, he probably will pull a Charlie Crist or Joe Biden/Ruth Ann Minner and appoint a caretaker. Some of the possible appointees: former state Democratic Party Chairman Nick Casey, current Democratic Party Chairman Larry Puccio, state Senate President Earl Ray Tomblin, former Gov. Gaston Caperton, and former Gov. Bob Wise.
*** More midterm news: In Illinois, embattled GOP Senate nominee Mark Kirk will finally address reporters today at a hotel in Northbrook. "Kirk will lay out the contrast in the race and the choice between his record and Alexi Giannoulias's, speak to the big issues confronting the state of Illinois … and acknowledge mistakes that have been made concerning his record," a Kirk strategist told Politico… In Ohio, a new Quinnipiac poll shows Gov. Ted Strickland (D) leading John Kasich (R) by five points (43%-38%) in that state’s gubernatorial contest, though Strickland is well below 50%.
Countdown to AL run-off: 14 days Countdown to GA primary: 21 days Countdown to OK primary: 28 days Countdown to KS and MO primaries: 35 days Countdown to CO and CT primaries: 42 days Countdown to Election Day 2010: 126 days
The Washington Post on yesterday's Senate hearing to consider Elena Kagan's nomination to the U.S. Supreme Court. “Speaking in slow and deliberate tones, Kagan told the committee that her experience as a legislative aide, a White House adviser and most recently solicitor general had underscored for her the importance of a judicial branch that knows its bounds. ‘The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one -- properly deferential to the decisions of the American people and their elected representatives,’ Kagan said.”
“Her use of the term ‘modest’ offered the first clue to Ms. Kagan’s judicial philosophy in her own words,” the New York Times adds. “The question of just what Ms. Kagan means by it — and just what, precisely, her judicial philosophy is — will be a core theme of the hearings when senators begin questioning her on Tuesday.”
Here’s how one of us described Kagan’s opening remarks. “She didn't offer a memorable line like John Roberts' "balls and strikes" metaphor. She didn't have a devoted spouse looking on like Samuel Alito did. And she didn't have a proud parent sitting behind her, a la Sonia Sotomayor. Nevertheless, Supreme Court nominee Elena Kagan delivered quite a performance in her opening remarks before the Senate Judiciary Committee.”
“[Monday], of course, was the easy part of Kagan's testimony, and she didn't refer to any of the GOP critiques of her nomination (lack of judicial experience, the military recruiters at Harvard, that she was a political operative/adviser for Bill Clinton). [Tuesday] and Wednesday bring us the Q&A, where we'll find out the answers to those questions.”
Here’s MSNBC.com’s Carrie Dann’s live-blogging wrap of Day 1.
The AP: "A Supreme Court nomination hearing is not the place for a would-be justice to display a sharp tongue or a biting wit. Supreme Court nominee Elena Kagan has both, and some of her snarkiness over the years has been directed at the same senators who will be grilling her for a position on the nation's highest court. Kagan will be off-script Tuesday on the second day of her confirmation hearings and will probably keep a more civil tongue. But she will probably hear some of her own words thrown back at her."
Roll Call: "Senate Republicans wasted no time Monday launching a broad offensive against Supreme Court nominee Elena Kagan, raising questions about the veracity of her testimony at her confirmation hearings before she even spoke a single word. For weeks Republicans have made it clear that they intended to use the hearings to attack Kagan on a range of contentious policy issues. But as the Judiciary Committee confirmation hearing began Monday, GOP Senators unveiled a new line of attack, arguing that Justice Sonia Sotomayor’s dissent in a recent gun rights case proves that Kagan’s statements to the committee, no matter how explicit, may not be trustworthy."
The Washington Post’s Dana Milbank says GOP senators seemed to spend more time attacking the late Thurgood Marshall than Kagan. “It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show?”
"Kagan, the current solicitor general, clerked for Marshall in the 1980s and has listed the civil rights icon as one of her judicial heroes. Judiciary Committee Republicans, including ranking member Jeff Sessions (Ala.) and Sen. John Cornyn (Texas), attacked Marshall as an out-of-the-mainstream liberal during their opening remarks Monday," Roll Call adds.
The vacant seat of the late Sen. Robert Byrd, D-W.Va., is seen on Capitol Hill in Washington, Tuesday, June 29, 2010, before the start of the Senate Armed Services Committee hearing for Gen. David Petraeus.
The New York Times notes how Robert Byrd's death yesterday now complicates the final passage of financial/Wall Street reform. "The death of Senator Robert C. Byrd of West Virginia threw into doubt the ability of Democrats to win approval this week of a financial regulation bill and underscored how the smallest changes in the size and composition of their Congressional majority have complicated their efforts to pass ambitious legislation over near-unanimous Republican opposition."
The Boston Globe: "Senate Democrats, who were already dealing with a razor-thin margin of support, will have to persuade up to four Republicans to help them fend off a GOP filibuster when the plan, which Byrd backed, comes up for a vote."
Wisconsin Democrat Russ Feingold is a no on financial reform.
The Washington Post previews today's Senate confirmation hearing for Gen. David Petraeus. "Lawmakers in both parties have praised the selection of Petraeus, who is expected to be approved, but they will use the hearings as a way to press their views on the war. Some Republicans, such as Sen. John McCain (Ariz.), are likely to urge Petraeus to signal that the administration's plan to start a drawdown of troops in Afghanistan in July 2011 is just a goal and won't happen if conditions there would be helped by maintaining current troop levels. But some Democrats, such as Armed Services Chairman Carl M. Levin (Mich.), say a timetable is essential to pushing the Afghan government to take on more security responsibilities."
The AP: "Lawmakers will also question Petraeus about whether he will be as strict as McChrystal was about the military's rules of engagement. Some troops have charged that the restrictions on firepower have hurt their effectiveness and put them at risk. Democrats say they are willing to back Obama's ordered troop buildup of 30,000 for now, but they want to start seeing results by the end of the year. They also want assurances from Petraeus that troops will start leaving in July 2011, as Obama has promised."
The Hill: "President Barack Obama's nomination of Gen. David Petraeus has put some Democrats in a politically awkward position. While Senate Democrats are expected to rally behind Petraeus to replace Gen. Stanley McChrystal as the top commander in Afghanistan, they must also ask tough questions about when the U.S. will withdraw troops from the war-torn country."
Another Hill piece: "Sen. Carl Levin (D-Mich.), the panel's chairman, said on Monday he plans to press Petraeus on whether the Afghan army should lead more military operations, particularly in the Kandahar region in the short term.
And really? A quarter of Americans either believe President Obama was born outside the United States or aren't sure? (Vanity Fair/60 Minutes poll: 13% outside U.S., 11% not sure which country.) And just 39% believe he was born in Hawaii?
Per the New York Times, “When he ordered 30,000 additional troops to Afghanistan last December, President Obama stressed that they would not stay forever. ‘After 18 months,’ he said, ‘our troops will begin to come home.’ Last weekend, though, he scorned the ‘obsession around this whole issue of when do we leave,’ saying he was focused on making sure the troops were successful. The July 2011 deadline he set was intended to ‘begin a process of transition,’ he said, but ‘that doesn’t mean we suddenly turn off the lights and let the door close behind us.’”
"Sen. Lindsey Graham (R-S.C.) will not attend a pivotal Tuesday meeting at the White House on energy and climate legislation between President Barack Obama and a bipartisan group of senators," The Hill writes. "Graham cited conflicting hearings with Gen. David Petraeus, who is the newly designated head of the military campaign in Afghanistan, and Supreme Court nominee Elena Kagan."
Stu Rothenberg's column in Roll Call today: "President Obama, welcome to Bush's world": "If bad news continues in our nation’s newspapers and on the evening news, whether about jobs and the economy, foreign policy or the environment, the public will quickly discount Democratic achievements on Capitol Hill as ineffectual and insufficient. That’s why Republicans were punished in 2006 and 2008, and it’s why Democrats are headed for the same fate. The president needs some good news. Unfortunately for him and his party, time is running out, and tomorrow’s news is largely beyond their control."
(But weren’t Republicans punished in 2006 and 2008 because they stayed the course with a war of their own choice that was widely unpopular -- much more unpopular than the current one in Afghanistan?)
COLORADO: The Chamber of Commerce endorsed Republican Jane Norton for Senate yesterday, according to a Chamber press release.
CONNECTICUT: The two Democratic candidates for governor are sparring over a television ad, the AP reports. “Ned Lamont on Monday called on former Stamford Mayor Dan Malloy, the endorsed candidate, to stop running a TV ad claiming 5,000 jobs were created during his 14-year tenure. Lamont calls the ad misleading. The Hartford Courant, citing state labor statistics, reports that employment grew in Stamford during the late 1990s and peaked in 2000, but the city has since lost more than 13,000 jobs.”
FLORIDA: Two donors to then-Republican Gov. Charlie Crist’s Senate campaign “have filed a class-action lawsuit on behalf of all contributors who are demanding their money back after Crist announced he’d run as an Independent,” Naples News reports. “The two are represented by Rep. Tom Grady, R-Naples, who resigned as regional chairman of Crist’s Senate campaign and from the statewide finance team after the Republican switched parties.”
“Visiting Cuban-American senior citizens and Radio Mambí in Miami, Republican gubernatorial candidate Rick Scott introduced himself Monday to one of the few communities across Florida that hasn't seen his $16 million media blitz:” the Hispianic community, the Miami Herald reports.
IDAHO: “State Rep. Raul Labrador, still working to prove himself to national Republicans after winning an upset victory for his party's nomination, is backtracking on comments he made during the primary campaign criticizing House Republican Leader John Boehner,” Politico writes. At a March rally, while he was still the underdog in the race, Labrador said, “"The problem is that John Boehner and the establishment in Washington D.C. failed us a few years back. That's why we have Obama and a Democratic Congress right now.” (Did he really say Democrat-IC?)
ILLINOIS: The Chicago Sun-Times’ Sweet on Mark Kirk’s record with the media, after he ran away from them last week: “Kirk has been ducking routine press coverage since he jumped into the Senate race. He refuses to release, when asked, his government or his political schedules. He also declines to volunteer where he is going to raise campaign cash and who hosts the events.”
NEVADA: Alan Keyes records a radio ad in support of Republican Senate candidate Sharron Angle, calling Democratic opponent Harry Reid a “socialist,” the Las Vegas Sun’s Jon Ralston reported yesterday.
NEW YORK: "Republicans would like to forget the special election battle that raged in New York’s 23rd district last year, the one that pitted the moderate and conservative wings of the party against each other and ultimately led to a Democrat winning the seat for the first time in a century," Roll Call writes. "But as the state GOP establishment starts to line up behind businessman Matt Doheny -- and against accountant Doug Hoffman -- some Republicans fear that a three-way race replay is exactly what they could get."
OHIO: A new Quinnipiac poll “shows Ohio Gov. Ted Strickland holds a slight lead over Republican challenger John Kasich,” the Cleveland Plain-Dealer reports.
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."
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 watchingand 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.comPolitical 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.
From NBC's Ken Strickland With Robert Byrd's death, there is plenty of speculation on Capitol Hill on whether Senate Majority Leader Harry Reid can muster the 60 votes needed to break an expected GOP filibuster on the financial regulatory reform bill. The vote for final passage is expected this week.
Last month, Byrd voted with his party -- with three Republicans joining him -- to give Reid the 60 required to advance the bill to Senate passage. But two Democrats, Maria Cantwell and Russ Feingold, defected, saying the Senate bill was too weak.
Today, Feingold made it clear that he's still a "no" on the latest version, which was merged with the House bill in what's called a conference committee.
"As I have indicated for some time now, my test for the financial regulatory reform bill is whether it will prevent another crisis. The conference committee's proposal fails that test, and for that reason I will not vote to advance it," Feingold said in a written statement.
It's also unclear if the four Republicans who voted for the Senate bill will support the new version. Those Republicans are Scott Brown, Susan Collins, Olympia Snowe, and Chuck Grassley. (Brown has already indicated he has some issues with a provision in the new bill, saying it amounts to a tax on big banks.)
From NBC's Mark Murray She didn't offer a memorable line like John Roberts' "balls and strikes" metaphor. She didn't have a devoted spouse looking on like Samuel Alito did. And she didn't have a proud parent sitting behind her, a la Sonia Sotomayor.
Nevertheless, Supreme Court nominee Elena Kagan delivered quite a performance in her opening remarks before the Senate Judiciary Committee.
Kagan was deferential to the senators who will decide her fate ("Each of you has been unfailingly gracious and considerate); she talked about her family's immigrant past ("My parents lived the American dream. They grew up in immigrant communities; my mother didn't speak a word of English until she went to school"); and she gave shout-outs to two past/current female SCOTUS justices, Sandra Day O'Connor and Ruth Bader Ginsburg.
Yet the meat of her remarks drew on politically neutral comments about the law. Kagan praised the law's "even-handedness and impartiality, even when it's not always even-handed or impartial ("What it promises is nothing less than a fair shake for every American"); she talked about how the Supreme Court should be "modest"; and, sure to please court-watchers looking to see if she would uphold the health-care law, she said that the court should try to be deferential to the American people and its elected representatives ("the court must ... recognize the limits on itself and respect the choices made by the American people").
And she channeled her inner Barack Obama. "I've learned that we make progress by listening to each other, across every apparent political or ideological divide. I've learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I've learned the value of a habit that Justice Stevens wrote about more than 50 years ago -- of 'understanding before disagreeing.'"
Today, of course, was the easy part of Kagan's testimony, and she didn't refer to any of the GOP critiques of her nomination (lack of judicial experience, the military recruiters at Harvard, that she was a political operative/adviser for Bill Clinton). Tomorrow and Wednesday bring us the Q&A, where we'll find out the answers to those questions.
President Barack Obama and Russia's President Dmitry Medvedev make an unscheduled visit to Ray's Hell Burger in Arlington, Va., Thursday, June 24, 2010.
President Obama, cheeseburgers in tow, stressed last week during his meetings with the Russian president that there had been a real thaw in relations with the United States' former Cold War adversary.
Less than a week later, the Department of Justice announced today the arrests of 10 men and women, from Virginia to Boston, accused of spying for Russia.
NBC's Robert Windrem reports that the complaint in today's indictment and round up of the suspected agents details a spy novel-like operation that includes false identities, secret communications, money and document handoffs in heavily trafficked areas of New York City like Grand Central Station and Central Park. Some of those arrested have lived undercover in the United States for 20 years.
Those arrested were described by the Justice Department as "deep cover" agents operating on behalf of the SVR, the successor to the KGB.
One law enforcement official described today's takedown as "historic", the rounding up of the SVR's entire "illegals" program.
The complaint does not allege they were involved in espionage but imply they had been set up to carry out intelligence gathering.
They were sent to the United States and told not to get government jobs but to set themselves up as "normal citizens," the official said. They were tasked to get in touch with "influential" Americans -- college professors, contractors, congressional staffers.
The Russians, trained and directed from "Moscow Center," were given Americanized names. The defendants known as "Richard Murphy" and "Cynthia Murphy" from Montclair, N.J., Vicky Pelaez and the defendant known as "Juan Lazaro" were living in Yonkers, N.Y., Anna Chapman was living in Manhattan. In addition, other defendants were known as "Donald Howard Heathfield" and "Tracey Lee Ann Foley" lived in Boston. A defendant known as "Christopher R. Metsos" remains at large.
Eight of the ten arrested posed as married couples.
WNBC's Jonathan Dienst reports, at least some of them are expected to face arraignment this afternoon in federal court in New York City and Alexandria, Va.
*** UPDATE *** More from Windrem: How do Russian spies identify each other?
According the complaint, one way sounds a lot like it was stolen from a BAD spy novel.
As part of an elaborate plan to hand-off a phony passport on a New York park bench, one party was supposed to ask the other, "Excuse me, but haven't we met in California, last summer." To that the second party was to respond, "No, I think it was the Hamptons."
At that point, the passport was to be turned over.
The complaint also details how the group was provided tens of thousands of dollars to carry out its mission. In addition, the SVR approved the purchase of a house in Montclair, NJ that was used by the key couple named in the complaint.
From NBC's Alexander Rosen In the wake of Gen. Stanley McChrystal's resignation last week, it remains unclear whether a wide-scale house cleaning of his former staff will occur within U.S. Central Command. After all, it was not only McChrystal who was quoted in the Rolling Stone article making inappropriate comments, but also numerous anonymous aides to the general.
So far only General McChrystal’s civilian press aide, Duncan Boothby, the man who set up the Rolling Stone article, has resigned from his position, but those who have not yet been fired or resigned could also be walking to the guillotine very soon.
The New York Times points out “General Petraeus is known for bringing a large and diverse team to work with him, one with civilians and military personnel,” adding that bringing in a new team is “somewhat more complicated in this case, because precipitous changes in the middle of a war could mean a loss of continuity and institutional knowledge.”
A senior officer speaking on the condition of anonymity told the Times that in order to create a smooth transition of power in U.S. Central Command, “A lot of people will stay for the transition and then you’ll see them gradually pack up.”
It might be unlikely that the names of the aides quoted alongside McChrystal in Rolling Stone will be made public, but the individuals associated with McChrystal’s command could very soon be quietly looking for new jobs.
From NBC's Ken Strickland With the death of Robert Byrd, the presidential line of succession has changed. Hawaii Democratic Sen. Daniel Inouye will more than likely be the new Senate president pro-tempore.
Byrd, as the most senior member of the party holding the majority, served in the role of president pro-tempore. Under the Presidential Succession Act, that position is third in line to succeed the president: vice president, House speaker, and then president pro-tempore.
Senate tradition is for the majority party to elect its most senior member to the position. If that tradition continues today, Inouye is next is line. If Inouye declines to serve, Vermont Sen. Pat Leahy (D) is next in seniority.
*** UPDATE *** Shortly after the Senate opens today's session at 2:00 pm ET, Sen. Inouye will be sworn in as the new Senate president pro tempore, replacing Byrd according to a leadership aide.
Liberals, conservatives and those in between express condolences for the passing of Sen. Robert Byrd. Some examine various aspects of his legacy, both positive and negative, while others speculate on the fate of his now-vacant Senate seat.
Hot Air’s Ed Morrissey commented on the future of Byrd’s seat, as well as his long and varied Senate career. Regarding the political atmosphere surrounding Democratic Gov. Joe Manchin’s chosen successor for the seat, he wrote, “Manchin, reportedly wanted a shot at the seat himself when Byrd left the Senate. That would be a difficult maneuver now, at least in terms of the interim appointment. Had Byrd died a week later, Manchin could have appointed himself to what would have been a two-year term and hoped to ride Barack Obama’s coattails, such as they will be, into a full term in 2012. Now the election will have to be held this year in a midterm cycle poisonous to Democrats, especially in coal country while the Senate attempts to revive cap-and-trade.”
On Byrd’s legacy, Morrissey noted some sordid aspects of his early days in Congress: “Byrd’s history as a KKK recruiter and the man who filibustered the Civil Rights Act was routinely cited by Republicans and excused by Democrats. Ironically, he was the last member of the upper chamber from those days. Byrd also attracted controversy as one of the biggest practitioners of pork-barrel politics in Congress, which endeared him to many West Virginia voters but made him the scourge of clean-government and fiscal-responsibility activists. The media treated him with a bit of amnesia regarding the earlier portion of his career, focusing mainly on his self-described expertise on the Constitution and his work as a historian of the Senate.”
Writing at Reason Magazine’s blog Hit & Run, Nick Gillespie called comments about Byrd’s Klan past “a cheap shot because he did apologize for and disown his participation in the group. Better late than never, I suppose, even if it does make you wonder about all those politicians of his generation, even ones from the Deep South, who never felt a need to recruit for the KKK.”
He added that “it's Byrd's status as the Babe Ruth of pork-barrel spending and taxpayer-funded narcissism that is his real legacy and the one we should never forget or forgive. Here lies a man who pushed his home state to build a statue of him in defiance of a rule that such honorees be dead for 50 years.”
NRO’s Jim Geraghty laughed at an attribute of Byrd’s pointed out by Newsweek’s Eleanor Clift: “He kept an ongoing tally of his friends, using his power to convene and adjourn the Senate to accommodate an ally with a fundraiser to attend or, conversely, adjusting the schedule to make opponents think twice about the decision.”
“Aw, what a guy,” Geraghty wrote. “Don’t we all wish we had a buddy who could adjourn one chamber of the legislative branch when we absolutely, positively had to be at a fundraiser that night?”
Liberal blogger John Cole at Balloon Juice wondered about the future of Byrd’s seat: “One of the weird things about West Virginia is that Rockefeller and Byrd loomed so large that there sort of seems to be a vacuum of politicians of any stature on either side of the aisle at the state level. I’d imagine that if Gov. Manchin ran, he would have a very good chance of replacing him, because he is quite popular and connected and seems to fit in with the sensibilities of WV voters. The state has been trending Republican for a while, so I’m sure with the absence of a strong Democratic candidate, no matter who the Republicans run, it would be a toss-up.”
On his specific bets, he wrote, “I actually wouldn’t be surprised to see Mac Warner, the man who lost to [David] McKinley in the Republican race to unseat [Rep. Alan] Mollohan, try to run for the seat. Likewise, I can see [Rep. Shelley Moore] Capito deciding it is time to move up. We’ll see. I just don’t know how this will play out.”
On succession, liberal blog Daily Kos’ David Waldman considered Gov. Manchin’s nominating himself to the seat. “No one relishes the optics of a governor nominating himself for the job. But neither are most people enthralled with the idea of appointing a caretaker to temporarily occupy a seat to which Byrd attached such immense power and influence over in over 50 years in the Senate.”
But appointing a caretaker is exactly what the Washington Monthly’s Steve Benen thinks Manchin will do, given his Senate aspirations: “It’s in his interest, then, not to declare the seat vacant until after Saturday, after which point Manchin can name a placeholder until the 2012 election.”
From NBC's Pete Williams Today's highly unusual day at the Supreme Court began with Chief Justice John Roberts announcing the death of Justice Ruth Bader Ginsburg's husband, Martin, calling him "a dear friend to everyone at the court."
In tribute to the last day on the bench for Justice John Paul Stevens, many people in the lawyer's section and the public area wore bow ties, his longtime neckwear of choice.
After a marathon that took more than an hour to announce the remaining four opinions and the long dissents, the chief justice told Stevens, "The Supreme Court convened for the first time in 1790. You have served on its bench for nearly one-sixth of its existence." His decision to retire, Roberts says, "saddens each of us in distinct ways."
Justice Stevens responded by saying that years ago, he would have addressed the court as "my brethren," but now does so as "my colleagues."
"If I have overstayed my welcome, it is because it is a unique and wonderful job."
The big news from the Supreme Court -- on its final day of opinions for the year -- was yet another 5-4 win for the conservative Roberts court.
The Supreme Court ruled Monday that the Constitution's "right to keep and bear arms" applies nationwide as a restraint on the ability of the federal, state and local governments to substantially limit its reach.
By a 5-4 vote split along familiar ideological lines, the nation's highest court extended its landmark 2008 ruling that individual Americans have a constitutional right to own guns to all the cities and states for the first time.
In doing so, the justices signaled that less severe restrictions could survive legal challenges. The ruling involved a 28-year-old handgun ban in the Chicago area.
The ruling was a victory for four Chicago-area residents, two gun rights groups and the politically powerful National Rifle Association.
It was a defeat for Chicago, which defended its ban as a reasonable exercise of local power to protect public safety. The law and a similar handgun ban in suburban Oak Park, Ill., were the nation's most restrictive gun control measures.
4:10 ET: At the conclusion of Kagan's statement, Leahy adjourned the hearing until tomorrow at 9 am ET. Flashbulbs were again a-popping as she left the hearing room after greeting friends and supporters. (The noise makes the hearing room sound as if every person in it is crumpling a paper bag at the same time.)
Tomorrow, the senators will begin their questioning of Kagan. For the first round of questioning, each senator will have 30 minutes to ask questions of the nominee. Questioning will continue on Wednesday and possibly on Thursday.
That's all for the day, but come back to NBC's First Read tomorrow for our continuing live coverage of the confirmation hearings.
4:02 ET: More Kagan: "I will make no pledges this week other than this one - that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law."
4:01 ET: Speaking about her mentor Justice Thurgood Marshall, Kagan said: "Justice Marshall revered the Court - and for a simple reason. In his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American - and that most often fulfilled our Constitution's promise of treating all persons with equal respect, equal care, and equal attention."
3:59 ET: Kagan thanked the women who have served on the court and offered her condolences to Justice Ruth Bader Ginsberg, whose husband passed away yesterday.
3:54 ET: Almost three and a half hours into the hearing, the nominee has uttered her first words of the day. The sound of camera shutters popping as she was sworn in was almost overwhelming.
3:50 ET: Brown, a Republican and a 29-year veteran of the Massachusetts National Guard, said in May that he was "satisfied" with Kagan's explanation of the issue of military recruitment at Harvard Law. (Read a report by NBC's Ken Strickland on that meeting here.)
In his remarks to introduce her today, Brown did not bring up that issue, nor did he allude to how he will vote on her confirmation. But he said that she is "undoubtedly a brilliant woman" and that he would be "proud" for the fourth woman to ever serve on the court to have such strong roots in his home state.
He added: "I look forward to Ms. Kagan’s responses to the committee’s questions. I know that I have some of my own, and I am quite sure that my colleagues here today do as well."
3:43 ET: Kerry said that the late Sen. Ted Kennedy would have been proud to introduce Elena Kagan. Kennedy was the longest serving member of the Senate Judiciary Committee for either party.
3:37 ET: Three hours into the hearing, Sen. John Kerry, D-Mass., has begun his remarks to introduce Kagan. After he and Brown speak, Kagan will offer her opening statement. (For a preview of what she'll say, click here.)
3:30 ET: Here's something you very rarely hear at a Senate hearing: The panel may actually be ahead of schedule. Kagan's opening statement was originally estimated to happen around 3:45p ET. Reporters are now being advised that her remarks could actually start a little bit earlier than that.
3:25 ET: Sen. Al Franken, D-Minn., is the last senator to speak. Like almost every member of the panel, he opened his remarks with a note about the legacy of Sen. Robert Byrd, who passed away this morning.
"I would have to serve until I was 118 years old" to serve as long as Sen. Byrd did, Franken noted. "I doubt that's going to happen."
3:19 ET: Sen. Scott Brown, R-Mass., has entered the hearing room. He will be joined by delegation colleague Sen. John Kerry to introduce Kagan before her opening statement.
3:15 ET: Sen. Amy Klobuchar, D-Minn. highlighted that Kagan - if confirmed - would be the fourth woman to ever serve on the high court. Klobuchar is one of just two women currently serving on the Senate Judiciary Committee.
3:14 ET: During the break, Republican Sens. Cornyn and Sessions fielded questions from reporters outside the hearing room. Both pushed back at Democrats' criticism of "conservative activism" on the part of the Roberts court, especially as illustrated by the Citizens United decision. (To read more about that case, click here).
Sessions called Democrats' description of the landmark decision "a distortion," and Cornyn warned that outcry about its consequences for the political process should be "taken with a grain of salt." Those who support the court's decision say that it upholds the First Amendment right to free speech.
The two Republicans were also asked about GOP members' description of the late Justice Thurgood Marshall as an "activist judge." Marshall, a civil rights icon who later became the first African-American to serve on the high court, famously argued the Brown v. Board of Education case as a lawyer for the NAACP. Asked if he believed that case -- which ruled unconstitutional the doctrine of "separate but equal" -- represented improprer "activism," Cornyn responded, "No, I do not."
2:57 ET: And we're back. Next up, Sen. Sheldon Whitehouse, D-R.I.
2:37 ET: A ten minute recess in the hearing means there's time for a history fact break!
Republicans are eager to discuss what President Obama's judicial nominations indicate about his governing philosophy. Per the Congressional Research Service: Of the 44 presidents in American history, 41 of them have had the opportunity to nominate someone to the high court. The three who didn't get the chance: William Henry Harrison, Zachary Taylor, and Jimmy Carter.
2:33 ET: The final members to speak before a well-earned 10 minute break in the hearing: Sens. Tom Coburn, R-Okla, and Sen. Ben Cardin, D-Md.
2:22 ET: Sen. Dick Durbin, D-Ill., echoed Schumer's criticism of "activism" on the part of the Roberts court. Referencing the name of a recent Supreme Court ruling that dramatically loosened limits on how corporations can advocate on the part of political campaigns, Durbin said to conservatives who warn of activism by liberal judges, "I have two words for you: Citizens United."
2:12 ET: The son of the late Justice Thurgood Marshall, for whom Kagan clerked, is in the hearing room today. Marshall was described as a "well-known liberal activist judge" by Republican Sen. Sessions earlier today. And Sen. Cornyn of Texas called Marshall an "unapologetic" activist judge.
2:08 ET: More Schumer: "She is straight out of central casting for this job."
2:05 ET: Sen. Chuck Schumer, D-N.Y., quipped that -- with thousands of pages of documents released by the Clinton Library in the weeks leading up to today's hearing -- the only thing that senators lack access to is Kagan's "kindergarten report card."
Schumer also took aim at the current court led by Chief Justice John Roberts, calling it a "highly fractured court with an often rarefied way of looking at the law." Citing recent decisions that some Democrats have criticized as too pro-business, he said that the court has been exercising "judicial activism to pull the country to the right."
1:57 ET: Graham said that he believes Kagan's blocking of military recruiters at campus placement centers at Harvard Law School was "inappropriate," but he adds that there will be more to discuss on the topic as the hearing progresses.
He also said that Kagan will have "a lot of explaining to do" about her naming of Barak as her "judicial hero."
Addressing those who have seemed "surprised" that Obama nominated a "liberal person," Graham said, "What did I expect from President Obama? Just about what I'm getting."
"At the end of the day, I think the qualification test will be met," he said. But he added that questions remain about whether or not Kagan can keep from "channeling" her political views while serving on the court.
1:52 ET: Sen. Lindsey Graham, R-S.C., is up next. He was the only GOP member of this committee to support Supreme Court nominee Sonia Sotomayor.
1:43 ET: Sen. Arlen Specter, D-Penn., is the ninth senator to speak. He was once the first member to deliver opening statements at hearings like this one; as a Republican, he chaired the committee between 2005-2007, but he lost his seniority on the panel when he changed parties last year.
1:37 ET: Several Republicans, including Kyl, have warned that Kagan's writings show that she would be a "results-oriented" judge who would make decisions based on her opinion of what the outcome of a case should be, regardless of the rightness of the judgment under the Constitution.
1:33 ET: Sen. Russ Feingold, D-Wisc., hinted at the fact that the court, while it has become more racially diverse over the last century, still lacks wide geographic diversity. (If confirmed, Kagan would be the fourth New Yorker on the court.)
Sen. Jon Kyl, R-Ariz., joked that he, too, hopes for more geographic diversity on the court, considering that it's been three years since a justice from his home state (retired justice Sandra Day O'Connor) served as a Supreme Court justice.
1:27 ET: Sen. Chuck Grassley, R-Iowa, says that Kagan's lack of experience as a judge is not "dispositive," but says that because she has not served on the bench, "it's even more critical that we are persuaded that you have the proper judicial philosophy and will practice it once confirmed."
1:18 ET: "Snoozefest?" Feinstein said that if this week's hearings aren't full of fireworks, it's a testament to just how qualified the nominee has shown herself to be.
1:15 ET: Sen. Dianne Feinstein, D-Calif. is next to speak. She praised Kagan's experience as Solicitor General and said "I believe that you are eminently confirmable."
Noting that Kagan has come under fire for never having served as a judge, Feinstein countered: "Frankly, I find this refreshing." All of the current judges on the Supreme Court served as federal appeals court judges before being nominated to the high court.
1:08 ET: Hatch to Kagan: "Something tells me that this is going to be your last confirmation hearing."
1:05 ET: Sen. Orrin Hatch of Utah now giving his opening statement. He was one of two Republicans on the committee who voted to confirm Kagan as Solicitor General last year. (The other was Sen. Jon Kyl, R-Ariz.)
12:58 ET: In calling for Kagan to be transparent about her judicial philosophy, Kohl references a memo Kagan wrote in 1995, in which she called judicial confirmation hearings "a vapid and hollow charade."
Saying that Kagan's "judicial philosophy is almost invisible to us," he added that, while senators don't have the right to know in advance how she would decide particular cases, "we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court."
12:56 ET: Next up in opening statements, Sen. Herb Kohl, D-Wisc. Statements will proceed in order of seniority on the panel, alternating between Democratic and Republican members. There are 19 members of the Senate Judiciary Committee.
12:53 ET: More Sessions: Kagan has "associated herself with well-known activist judges" like Thurgood Marshall and Israeli Supreme Court Justice Aharon Barak. He says that President Obama "calls on judges to base their decisions on empathy and their broader vision of what America should be. He suggests that his nominee shares those views."
12:46 ET: Ranking member Jeff Sessions, who will lead the GOP argument against Kagan'sconfirmation, promises a fair and respectful hearing, goes on to cite Kagan's lack of judicial experience and her career path as a political aide in the Clinton White House among his "serious concerns" about her ability to serve impartially on the court.
12:40 ET: In his opening statement, Leahy urges Kagan to "be open, be responsive" and "to share with us and the American people her judicial philosophy and indicate her judicial independence."
"I believe that fair-minded people will find her judicial philosophy well within the legal mainstream," said the Vermont lawmaker.
12:33 ET: Opening the hearing, Leahy offered a tribute to the late Sen. Robert Byrd, who died this morning at the age of 92. He called Byrd "a mentor and a friend" and an example for future generations.
12:32 ET: The nominee was all smiles as she entered the hearing room. She's seated now and Chairman Leahy has gaveled the hearing to order.
12:15 ET: Live from Room 216 of the Hart Senate Office Building, we are live-blogging the confirmation hearing of Supreme Court nominee Elena Kagan. If confirmed, Kagan would be the 112th justice of the high court, and only the fourth woman to serve in the court's history.
The hearings are slated to begin at 12:30 ET, so check back to this space often to get the latest news. Here are five things that we'll be watching throughout the week as the debate unfolds.
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