Franken, Klobuchar, take their turns at Kagan hearing

Elena Kagan, Al Franken
Senate Judiciary Committee member Sen. Al Franken, D-Minn., left, listens to Supreme Court nominee Elena Kagan, right, as she testifies on Capitol Hill in Washington, Wednesday, June 30, 2010, before the committee'shearing on her nomination.

Democratic Senators Al Franken and Amy Klobuchar took somewhat different approaches to their questioning of U.S. Supreme Court Justice nominee Elena Kagan during her confirmation hearing Wednesday.

Klobuchar asked Kagan to talk about how her professional experiences might influence her on the high court, while Franken focused on issues surrounding judicial activism.

From the time that President Obama announced Elena Kagan's Supreme Court nomination, Franken and Klobuchar have had only positive things to say about her.


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Klobuchar has been calling Kagan a consensus builder who could help bring together the currently divided Supreme Court. Klobuchar has also stressed the value of Kagan's professional experiences outside the so-called "judicial monastery." Kagan has never served as a judge, but she has been the nation's solicitor general for a little more than one year.

Toward that end of her allotted time, Klobuchar asked Kagan to talk about what she learned from her job as Dean of the Harvard Law School. She said she gained valuable experience that she wouldn't have had if she had been a professor her whole career.

"So many people come to your office with just life problems and you get exposure to, you know, so many different sorts of issues that people are struggling with," Kagan told Klobuchar.

Klobuchar also asked what Kagan has learned from arguing cases on behalf of the federal government before the Supreme Court as solicitor general. Kagan said justices want answers to their questions, not recitations of attorneys' legal briefs.

"It make sense to go down the road that the court wants you to go down because that's what the court is interested in," she said. "It's only if you address the justices real concerns that you're going to win your case."

Klobuchar wrapped up her first-round of questions by concluding that Kagan did a "good job."


When Judiciary Committee Chairman Patrick Leahy called on Franken, Minnesota's junior Senator got right to his criticism that the current Supreme Court has been favoring powerful corporate interests over the rights of individuals.

Franken talked about how he believes that mandatory arbitration clauses strip Americans of the right to have grievances heard in a neutral court.

"Do you still agree ... that one of the glorious things about courts is that they provide a level playing field in all circumstances?" he asked Kagan.

She replied that she agreed "very strongly" with Franken.

Democrats have accused the court -- led by Chief Justice John Roberts -- of overstepping its role by establishing policy rather than interpreting the law. Franken has been outspoken on the issue. In his time with Kagan, Franken was sharply critical of Chief Justice Roberts.

He accused Roberts and other justices of judicial activism that contradicted their own stated tenets. Franken cited the campaign finance case "Citizens United" as an example of the Robert's court going beyond specific questions before it.

The landmark ruling this year determined that corporate funding of political broadcasts cannot be limited. It stemmed from a case of a non-profit corporation airing a film critical of Hillary Clinton.

"Do you agree with Chief Justice Roberts that courts should decide matters as narrowly as possible?" Franken asked.

"Yes, I do, Sen. Franken," she replied. "This leads to a kind of restrained decisions making in which consensus can be most easily achieved and appropriate and restrained outcomes most easily reached."

To which Franken said:

"I would be the last person to draw conclusions from your answers, but to be honest in Citizens United, I don't think Justice Stevens, I'm sorry, Justice Scalia or Chief Justice Roberts adhered to their own principles. I think they were legislating from the bench."

Both Franken and Klobuchar have said they expect Kagan will be confirmed. Both voted to confirm President Obama's first Supreme Court nominee, Sonia Sotomayor.