Close watchers of Elena Kagan’s confirmation hearings will notice that the Citizens United campaign finance decision and gun rights issues have been among the most frequent lines of discussion. But anyone familiar with earlier epic Supreme Court confirmation battles and the culture wars that groups claim they are fighting through the nomination process are probably left feeling a bit lacking this week.
TPM has been keeping track, and it’s a little surprising how few times the Judiciary Committee has talked about major issues. The first questioning just wrapped up and it’s on to round two. But here’s a summary of what hasn’t been discussed after three days and nearly 15 hours of testimony.
1. Abortion Even though the question on whether Roe v. Wade would ever be overturned still enflames both sides of the issue, abortion has barely come up during these hearings.
Some panel members noted that Kagan is pro-choice, but no one asked her about the constitutional right to privacy. “Abortion” was mentioned seven times Tuesday — in an exchange with a pro-choice Democrat, Sen. Dianne Feinstein — and just six times Monday in broad brush opening statements from Republicans and Feinstein.
No one seems to care much, either. Even the protesters can be counted on one hand.
2. Same sex marriage The question of same-sex marriage, one of the major issues that activists hope will come before the court again, has been almost non-existent during the hearings.
Sen. Tom Coburn (R-OK) was the first member to seriously broach the topic when outlining what he believes are Kagan’s social views:
[Y]ou have a very different belief system than most of the people who come — where I come from. And it’s not wrong to have that belief system. It doesn’t mean mine’s right and yours is right, but it is wrong for us not to know what you believe about a lot of things.
You’re very pro-choice. You believe in a woman’s right to choose. You believe in gender mixed marriages or gay marriage. You believe that states ought to recognize those throughout. If I say something that is — is inappropriate, please tell me.
Kagan told Coburn that “the way I would vote as a legislator with respect to any or all of those issues is a very different,” and he interrupted her.
“I’m not saying you are not going to have the capability to separate those positions. I’m not saying that,” he said. “So it’s not unfair to say who you are. And — and it’s not a slam at all. It’s just, you’re different than me, and you’re different than many of the people that I represent.”
Sen. Sheldon Whitehouse (D-RI) talked about gay marriage only tangentially in his opening statement when complaining about the Roberts court:
We’ve seen the first prohibition on a woman’s right to choose upheld with no exception to protect the health of the mother. This court even has chosen to inject itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay
trial in San Francisco, each decision 5-4.
Other than Coburn’s strange use of “gender-mixed” to describe same-sex marriage, the only mentions of “gay” (three) came as she talked about her opposition to Don’t Ask, Don’t Tell and military recruiting as dean of Harvard Law School.
3. Immigration Sen. Jon Kyl bantered with Kagan a bit yesterday about a lesser-known immigration measure in Arizona that makes it illegal to hire an undocumented immigrant — a law that’s gotten attention from the federal government. But Kyl didn’t ask about Arizona’s new law that President Obama said invites racial profiling and which his Justice Department is poised to challenge.
TPM asked Kyl yesterday why he hasn’t asked Kagan about the current law, signed by Gov. Jan Brewer this spring and likely to come before the Supreme Court.
“I only got about halfway through” a list of planned questions, Kyl told me. “So stay tuned.”
4. Health care lawsuits: Coburn’s vegetable exchange was the closest the senators have gotten to asking Kagan’s views on the interstate commerce clause that is at the heart of the state lawsuits.
But within hours of the announcement Justice John Paul Stevens was retiring, Judiciary Committee ranking member Sen. Jeff Sessions (R-AL) had signaled the lawsuits were among the things he’d expect to be raised during confirmation hearings for the eventual nominee.
5. Oil spill: Sen. Al Franken (D-MN), the last questioner for round one, asked some questions that hinted at the catastrophic Gulf Coast oil spill. Surprisingly, there have been just five brief mentions of the term “oil spill” — all from Democrats.
Another topic we haven’t heard anything about: eminent domain cases (like Kelo) that riled the nation a few years ago and still have major traction among conservatives.