It's question time in the Elena Kagan confirmation hearings. As yesterday, follow along here for reference to issues relevant to religious liberty and church-state separation. Of course, I don't expect committee members to ask how she would rule on specific scenarios. There is plenty of room, however, to ask her about her views of the role of the Establishment Clause for example, or about her experience in the Clinton White House with "religious expression in the workplace" guidelines, just to name two areas.
And here's another, if we want to get controversial and not too law-schoolish: Yesterday, Kagan referred to her grandparents' desire to "worship as they please", and Senator Kohl in his opening statement made reference to the importance of the "right to speak and worship freely." In fact, there's something of a squabble these days over whether the "freedom to worship" is the same as the "freedom of religion" guaranteed by the Constitution. Some critics, arguing the guarantee of religious freedom is more expansive than the "freedom of worship" implies, worry that phrase is being used in an effort to limit the reach of the First Amendment's Free Exercise clause. Maybe a Senator could ask her if she views those two phrases to mean the same thing? Does the freedom of religion as a legal principle involve more than the right to worship freely? Just a thought.
Updates from Day 2 of the hearing below:
7:10 – The committee has recessed for the day, a day dominated by very general questions of judicial philosophy, executive power, gun rights, and campaign finance. Questioning will continue tomorrow.
3:50 – In the absence of substantive religious liberty discussion during the afternoon session thus far, I give you one exchange with Senator Lindsay Graham, without comment…
GRAHAM: As we move forward and deal with law of war issues – Christmas Day bomber; where were you on Christmas Day?
…
KAGAN: You know, like all Jews I was probably at a Chinese restaurant. [Laughter]
12:50 – General Kagan winds up her answers before the lunch break with a response to Senator Feingold's question of how she will "strive to understand the effects of the Supreme Court's decision on the lives of the millions of Americans who don't live on the East Coast or in our biggest cities" with a commitment to respect for diversity:
I hope I've always been a person who's able to see beyond my own background and to listen hard to people, not only – we've talked about – listening hard to people of different political persuasions and views but to try to learn from people who have different geographic backgrounds, different religious backgrounds, different racial backgrounds; I mean I think that this is something not only that makes a good judge but that makes a good human being is to try to learn from people other than yourself and I hope I've used the opportunities that life has provided me…to do that.
12:35 – The committee is in a brief break after initial questioning. While nothing directly on religion law issues came up, Kagan did provide a snapshot of her views of judicial interpretation, beginning with the fact that the Constitution often sets out only general principles. She used the example of the 4th Amendment – prohibiting "unreasonable search and seizure", but her point would apply to the religion clauses as well: sometimes just reading the words of the text does not answer the question.
Elsewhere, she cited the First Amendment as an example of an area of law that especially relies upon the importance of precedent, moreso than the original intent of the Founders. In response to questioning from Senator Kohl, she said that often times asking into the original intent is helpful, but adds:
In other cases, the original intent is unlikely to solve the question, and that might be because the original intent is unknowable or it might be because we live in a world that's very different from the world in which the framers lived. In many circumstances, precedent is the most important thing. One good example of this is in interpretation of the First Amendment, where the court very rarely actually says, you know, what did the Framers think about this. The Framers actually had a much more constricted view of free speech principles than anyone does in the current time. And when you read Free Speech decisions of the court, they're packed with reference to prior cases, rather than reference to some original history. So I think it's a little bit case by case by case, provision by provision by provision, and I would look at this very practically and very pragmatically that sometimes one approach is the relevant one and will give you the best answer on the law and sometimes another.
She is clearly referring specifically to Free Speech law here, but would she say the same thing about the First Amendment's religious freedom protections? How does she weigh the importance, or helpfulness, of original intent versus precedent in solving church-state questions? Given her use of the First Amendment as a "good example," it would seem a fair question.
