WASHINGTON - Grilled by both Minnesota senators on Wednesday, U.S. Supreme Court nominee Elena Kagan proved an elusive quarry -- even in the case of the vampire versus the werewolf.
The Minnesota Democrats, both of whom sit on the Judiciary Committee, also tried starkly different tacks: Amy Klobuchar letting Kagan do much of the talking; Al Franken making her do much of the listening.
Klobuchar pressed the case for Kagan's fitness for the job, delving into the solicitor general's judicial philosophy and background as a woman, a lawyer and academic. Franken pressed Kagan -- to little avail -- on what he considers the "judicial activism" of the high court under Chief Justice John Roberts, which he says has limited the rights of ordinary Americans in the face of corporate power.
While Franken played the aggressor, Klobuchar leavened the hearing with a question on the new "The Twilight Saga: Eclipse" movie. Klobuchar, who has a teenage daughter, noted that Kagan probably missed it. "We did not miss it," Klobuchar said as others laughed, "and it culminated in three 15-year-old girls sleeping over at 3 a.m."
Klobuchar also queried Kagan about a Supreme Court case that overturned the hate-crimes conviction of a Minnesota teenager accused of burning a cross in the front yard of a black family in St. Paul. While concurring with the majority opinion, retiring Justice John Paul Stevens had criticized the legal reasoning as an "adventure in doctrinal wonderland."
"I think in the end, I disagreed with Justice Stevens more than I agreed with him in that opinion," Kagan said. "But I do think sometimes it's a fair criticism. ... It suggests something about maybe in some decisions, a lack of connectedness with certain facts on the ground."
Taking his turn, Franken pursued an issue he championed in the Senate: Barring federal contracts to defense companies that force workers to resolve disputes through mandatory arbitration rather than the open court, a measure inspired by the Jamie Leigh Jones rape case.
"Chances are, if you have a cell phone, a credit card, or you work, you're likely to have signed a contract with a mandatory arbitration clause," Franken said. "These clauses basically say 'if we violate your rights, you can't take us to court.'"
With varying degrees of success, Franken sought to elicit Kagan's agreement with his views on the law, challenging several Supreme Court decisions that limited or overturned federal statutes in employment and election law. To Franken's first question about whether the court should take into account lawmakers' intent, Kagan replied, "The only thing that matters in interpreting a statute is Congress' intent. Congress gets to make the laws."
But Kagan resisted Franken's invitation to say whether that tenet of "statutory interpretation" was violated in a 2001 opinion written by Justice Anthony Kennedy. "I don't know the case very well," said Kagan, offering an alternative explanation of Kennedy's decision. "But I'm just guessing on that."
"OK, I think you're guessing wrong," Franken said, to laughter.
"It's not the first time," she said.
Franken also had mixed results getting Kagan to back his criticism of Citizens United, a recent case that has come under fire from President Obama and other Democrats for ending federal limits on political advertising by unions and corporations.
Kagan, who defended the spending limits before the high court, noted that she had approached the case "as an advocate, not as a judge," adding, "There are certainly strong arguments on the other side as well."
Between Klobuchar's emphasis on judicial philosophy, and Franken's interest in the law, "you got two very distinct angles from these two senators," said Timothy Johnson, co-director of the Institute of Law and Politics at the University of Minnesota.
Kevin Diaz is a correspondent in the Star Tribune Washington Bureau.
