Judge Roger Vinson of the federal district court in Pensacola, Fla., suggested during a two-hour hearing on Sept. 14 that he was unlikely to dismiss a major challenge to the law by officials of 20 states, almost all of them Republican, plus three other plaintiffs. The plaintiffs object to provisions including the new law’s "individual mandate," an unprecedented requirement that people not covered by employer-based plans must buy comprehensive health insurance or face monetary penalties. It is to take effect in 2014.

The lawsuits-more than 15 so far-argue that Congress has no such power. Last month, federal district Judge Henry Hudson, of Richmond, Va., rejected a Justice Department motion to dismiss a similar suit by Virginia’s attorney general. But some leading legal experts, especially defenders of the new law, confidently predict that if any federal appeals court strikes it down, the Supreme Court will step in to uphold it, with some predicting a margin as lopsided as 8 to 1.

Critics of the law’s constitutionality scoff at such predictions. They’re confident that they’ll get at least the four conservative justices’ votes and that they have a good shot at swing-voting Justice Anthony Kennedy. Nobody seems to doubt that the four more liberal justices will support the new law. They appear to see Congress’s power to regulate interstate commerce as virtually unlimited, except by the Bill of Rights and other specific constitutional amendments.

However the case turns out, any ruling by the justices on the constitutionality of the health-care law would be the most important pronouncement on the relative powers of the federal and state governments in many decades.

The most fundamental question is whether Congress’s undoubtedly broad power to regulate activities affecting interstate commerce is so sweeping as to empower the government to require people who are engaged in no relevant activity at all other than living in the United States to buy health insurance. (When the Justice Department lawyer defending the new law sought to characterize a decision not to buy health insurance as commercial "activity," Judge Vinson interjected, "You’re trying to turn the word upside down and say activity is really equivalent to inactivity.")

The lawsuits also challenge as an invasion of state sovereignty the new law’s provisions requiring states, already strapped for cash, to spend billions of dollars expanding their Medicaid programs unless they withdraw entirely, a step widely seen as unthinkable.

Defenders of the law predict that no more than one or two of the most conservative justices would strike down the challenged provisions, which the government says are critical to effective federal regulation of a health care system that has a massive impact on interstate commerce. Walter Dellinger, a leading scholar and the acting solicitor general under President Clinton, foresees an 8-1 vote, with only arch-conservative Justice Clarence Thomas voting to strike down the new law. Tom Goldstein, another leading Supreme Court litigator, foresees a vote of at least 7-2.

"They’re just parroting the party line," retorts David Rivkin, a Washington lawyer who argued the case last week on behalf of the 20 states challenging the law. He says that upholding it would obliterate all limits on the commerce power, a step that Justice Kennedy and his four more conservative colleagues have repeatedly eschewed. Such a step would cross an important line and make America less free, Rivkin and his allies stress, by empowering Congress to require even the purchase of health-club memberships or, say, cars to stimulate the economy.

At the same time, leading centrist-to-conservative legal experts, including UCLA Law School’s Eugene Volokh, doubt that the justices would or should strike down such a hugely important enactment with so vast an impact on interstate commerce. Others stress that Congress’s sweeping authority to tax and spend for the general welfare-on which the somewhat analogous Social Security and Medicare taxes are based-provides ample authority for the penalty tax imposed by the new law on people who refuse to buy health insurance.

The justices have not struck down a major piece of legislation, let alone a president’s signature initiative, as beyond Congress’s power to regulate commerce in some 75 years.

Still, much may depend on where things stand when the issue reaches the justices. How popular or unpopular will the president’s new law be then? How costly? How effective? What if the voters have by then elected a more conservative Congress that wants to repeal the law? Such factors are not supposed to influence constitutional interpretation, but sometimes they do.

The post Healthy Debate appeared first on Stuart Taylor, Jr..

The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.

The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.

The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don’t ask, don’t tell," offers little support for a discriminatory policy that the military’s civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.

To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.

In last Thursday’s decision, Judge Virginia Phillips, of the federal district court in Riverside, CA, stressed an Obama statement that "preventing patriotic Americans from serving thei…

The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first. The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 19

The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.

The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.

The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don’t ask, don’t tell," offers little support for a discriminatory policy that the military’s civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.

To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.

In last Thursday’s decision, Judge Virginia Phillips, of the federal district court in Riverside, CA, stressed an Obama statement that "preventing patriotic Americans from serving their country weakens our national security" and assertions by Admiral Mike Mullen, Chairman of the Joint Chiefs, that "allowing homosexuals to serve openly is the right thing to do." Defense Secretary Robert Gates has made similar statements, subject to completion later this year of a Pentagon study on how best to phase in the change. Gates has restricted enforcement of  "don’t ask, don’t tell" in the meanwhile.

The 1993 policy bans the military from asking about service members’ sexual orientation but requires the discharge of those who admit to homosexuality. Since passage, some 13,000 service members have been discharged. The policy denies gays in the military the rights "to enjoy ‘intimate conduct’ in their personal relationships" and "to speak about their loved ones" or their homosexuality, the judge wrote.

Given the views of Obama and Mullen, Judge Phillips reasoned, "don’t ask, don’t tell" is trumped by the rights of Americans to engage in same-gender sexual relations, which the Supreme Court recognized in 2003.

That decision struck down a Texas law making homosexual sodomy a crime and held that constitutional due process protects "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Conservative critics have panned Judge Phillips, a Clinton appointee, as a liberal activist. But two impeccably conservative Washington lawyers have made a similar case against "don’t ask, don’t tell."

"The fact that the military’s senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve," wrote David Rivkin and Lee Casey, who have been prolific critics of many Obama policies, in a February 13 Washington Post op-ed, "will make it all but impossible for Congress to articulate a rational basis for excluding them."

In her 86-page opinion, Judge Phillips also detailed the severe impact of  "don’t ask, don’t tell" both on gay people serving in the military-including several members of the Log Cabin Republicans, the gay rights group that brought the lawsuit-and on the military itself.
She also asserted that the policy impedes recruitment and retention of good soldiers; contributes to a shortage of troops, especially those with critical language, medical, and intelligence skills; leads to lower standards for education, physical fitness, and character; and harms morale by requiring discharge of gay soldiers who have won the respect of those with whom they serve. For these reasons, "don’t ask, don’t tell" violates due process, the judge held. She added, less persuasively, that it violates the First Amendment too.

Judge Phillips said she would enter an injunction ordering the government to stop enforcing the policy in the coming weeks. The Justice Department, which traditionally defends the constitutionality even of laws opposed by the current president, is expected to appeal and obtain a stay of any injunction.

But the mostly liberal U.S. Court of Appeals for the 9th Circuit seems likely ultimately to agree with Phillips, who relied in part on a 9th Circuit decision in another case, in 2008, requiring "heightened scrutiny" of  "don’t ask, don’t tell." The 9th Circuit decision in the Log Cabin Republican case could come next year, setting the stage for likely Supreme Court review in 2012.

A judge more restrained than Phillips might have waited for the Senate to act on the House-passed measure to repeal "don’t ask, don’t tell." But if Congress has not repealed the policy by 2011, the justices may well cite the Obama-Gates-Mullen position as a basis for striking it down.
Also relevant, if less likely to be cited by the jurists, is the fact that some 75 percent of the public now opposes don’t ask, don’t tell. The justices do follow the polls, as well as the election returns.

Stuart Taylor is a contributing editor to NEWSWEEK and National Journal.

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The vote in 1993 to confirm Justice Ruth Bader Ginsburg—who had a considerably more liberal-activist background than Kagan—was 96 to 3. The votes to confirm Justice Stephen Breyer in 1994, Chief Justice John Roberts in 2005, and Justice Sonia Sotomayor last year were 87–9, 78–22, and 68–31, respectively. (With the 50-year-old Kagan joining Ginsburg and Sotomayor, there will be three women on the court for the first time ever.)

Of the five new justices to arrive between the stormy 52–48 confirmation of Clarence Thomas in 1991 and that of Kagan, only Bush nominee Samuel Alito had a smaller margin than hers. That was 58–42, in 2006. Only four Democrats supported Alito, and at least one of those has expressed regret.

Democrats accuse the 36 Republican Senators who voted no on Kagan (as did Democrat Ben Nelson of Nebraska) of simple obstructionism, for opposing a well-qualified, relatively moderate nominee.

Indeed, many experts predict that Kagan may move the court’s ideological balance marginally to the right. While calling herself politically “progressive,” she is widely seen as less liberal than the man she replaces, 90-year-old Justice John Paul Stevens.

“They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution,” Senate Judiciary Committee chairman Patrick Leahy complained during the three-day, off-and-on floor debate.

There’s something to that. Never before have congressional Republicans attacked a judicial nominee for his or her professed deference to enactments of the body in which they sit, such as the health-care legislation pushed through this year by President Obama. And Kagan has won praise from leading Republican legal luminaries such as former solicitors general Theodore Olson, Kenneth Starr, and Paul Clement.

On the other hand, the Republican case against Kagan is no weaker than was the Democratic case against Alito, whom Democrats—including then-Sen. Barack Obama—tried to filibuster.

While Alito’s record as of 2006 put him markedly to the right of Justice Sandra Day O’Connor, whom he replaced, and of the academic and journalistic elites, he was and is arguably closer to the center of public opinion than Kagan appears to be. He had more than 15 years of experience as a federal appeals-court judge. She has no judicial experience at all.

And while many analysts think that the appeals-court experience of all eight current justices is more than enough, Kagan’s lack of judicial experience makes it even harder than usual to predict how she will use her vast power as a justice. Besides, as a career academic, she has had little experience practicing law, either.

Republican Sen. George Voinovich of Ohio, who is retiring, stressed Kagan’s lack of judicial experience in announcing why he would oppose her after having voted for Sotomayor. The latter had been a Manhattan prosecutor, a corporate practitioner, and a federal trial judge as well as an appeals-court judge.

And it’s hardly surprising that Republicans assail Kagan for denying military recruiters the same assistance that Harvard Law School gave to other recruiters when she was dean, and for her apparently liberal views on some issues that energize the Republican base, including “partial birth” abortion, gun rights, and gay rights.

Meanwhile, the decisions by federal judges on July 28 striking down Arizona’s tough anti-illegal-immigrant law and on Aug. 4 declaring a sweeping federal constitutional right to same-sex marriage ratcheted up conservative angst about liberal judges.

The real explanation for the strong Republican vote against Kagan is not that Senate Republicans are more partisan than Democrats, or that the conservative justices are more “activist” as a group than the liberals. It is that in recent decades the Senate has become steadily more partisan.

Gone are the days when the Senate confirmed the president’s choices of justices and judges of diverse ideologies lopsidedly, as long as they were well qualified professionally and scandal-free. Indeed, not too long ago, unanimous votes to confirm were common: Stevens in 1976, O’Connor in 1981, Antonin Scalia in 1986, Anthony Kennedy in 1988.

The modern era of bitter battles over Supreme Court nominees began in 1987 with the liberal assault on archconservative Reagan nominee Judge Robert Bork, who went down to defeat by 58 to 42, and archconservative George H.W. Bush nominee Thomas.

For a time, less controversial nominees such as Kennedy, Ginsburg, and Breyer continued to enjoy fairly smooth sailing. But the partisan warfare over judges—and much else—continued to escalate. It culminated in Democratic filibusters of well-qualified George W. Bush court nominees such as Miguel Estrada, who withdrew in frustration in 2003, and the attempted filibuster of Alito.
Republicans have not filibustered a would-be justice or judge in many decades, if ever. But if they had the votes, many would have pressed for a filibuster of Kagan.

The trend toward ever-more-bitter partisanship suggests that if the coming election shrinks the current 59–41 Democratic majority, as expected, and the Senate again becomes closely balanced, filibusters of Supreme Court nominees of both parties could become routine.

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In his questions–speeches, really–to Kagan this morning, for example, Rhode Island Democratic Sen. Sheldon Whitehouse seemed mightily outraged by the Roberts court’s overruling of two precedents to reach its 5-4 decision in January striking down a longstanding federal ban on campaign spending by corporations in Citizens United v. Federal Election Commission. But neither Whitehouse nor any of his Democratic colleagues has been heard to complain of decisions by the more liberal justices to overturn conservative precedents (the 2003 ruling striking down laws against gay sex and overruling a major 1986 decision called Bowers v. Hardwick comes to mind).

Nor have Whitehouse or most of his fellow Democrats evinced any respect for a major precedent that the court laid down on Monday, when it held for the first time that the Second Amendment right to “keep and bear arms” restricts state and local gun-control laws, nor for the 2008 precedent holding that the Second Amendment restricts federal gun-control laws, nor for another 2008 precedent reducing from $2.5 billion to $500 million the punitive damage award against Exxon in lawsuits over the 1989 Exxon Valdez oil spill in Alaska. Whitehouse denounced that one without mentioning that the author was since-retired liberal Justice David Souter, whom Whitehouse has lionized in other contexts.

Some of the Republican senators, for their part, while pressing Kagan to swear allegiance to the two recent gun-rights precedents, vigorously defended the precedent-toppling Citizens United decision. Various senators waxed eloquent on the principles that should determine when to overrule a precedent and when not. But it’s hard to think of a senator of either party complaining in recent memory about a decision overturning a precedent beloved by members of the other party.

Then there’s “judicial activist,” a phrase that, as South Carolina Republican Sen. Lindsey Graham observed today, seems to be an imprecation for a judge “who rules in a way that we don’t like.”

“Our guys say Justice [Thurgood] Marshall was an activist judge,” Graham said to Kagan, to whom he has been by far the most friendly Republican. “Do you agree?” She did not, of course, having clerked for Justice Marshall and previously called him one of her heroes. “People on the other side of the aisle are calling the Chief Justice [John Roberts] an activist judge,” Graham continued impishly. “Can you name one person, living or dead, who is an activist judge?”

Kagan prudently ducked. But Sen. Al Franken of Minnesota and other Democrats pressed on with the argument that Roberts is a conservative activist and Marshall was not. Now, Marshall was a great man who became a crusading liberal at a time when members of his race were systematically oppressed and the law was on the oppressors’ side. Still, it’s hard to see as anything but activist Marshall’s view that, even after he had helped end that system of oppression, justices should “do what’s right and let the law catch up.”

Perhaps if Graham had been able to put Whitehouse on the stand, he would have asked, “Can you name one liberal, living or dead, who is an activist judge?” Or perhaps he would have asked Republican colleagues such as Sen. Jeff Sessions, “Can you name one conservative, living or dead, who is an activist judge?”

Some Republicans, meanwhile, made a big point of Kagan’s lack of judicial experience, a deficit that didn’t seem to bother those who were fans of conservative Justice William Rehnquist, who was nominated in 1971 by President Nixon, even though he had no pre—Supreme Court judicial experience either. Sessions and other Republicans also worked hard to prove that Kagan was “progressive” – a sin to which she confessed–or even “liberal.” But what did they expect from a liberal Democratic president?

Kagan herself could be accused of applying a different sort of double standard by backing away this week from her argument in a 1995 book review that nominees should be willing to detail their views on specific issues. But in fairness, she has shown herself more willing than any other recent nominee “to discuss forthrightly her views on the law and how she would approach judging,” as former acting solicitor general Walter Dellinger wrote in The Washington Post. And no less a judicial icon than Rehnquist similarly backed away in his own confirmation testimony from a 1959 article in which he had argued that senators should press nominees for specific answers.

Whether senator or nominee, it seems, where you stand on such principles depends on where you sit.

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Republican senators tried to paint Kagan as political and deceptive on issues including so-called partial-birth abortion. But her detailed answers sounded convincing. And her questioners moved on with little followup, to the frustration of conservative activists who thought a more effective case against Kagan could have been made.

Meanwhile, Democratic senators spent their time airing gripes against the “conservative activist” Roberts Court and other pet themes.

The partial-birth-abortion issue came up when Republican Sen. Orrin Hatch of Utah told Kagan that her role in writing Clinton White House documents about the “particularly gruesome” procedure “bothers me a lot” because it could involve “politicization of science.” The Kagan documents involved a draft paper by a panel of the influential American College of Obstetricians and Gynecologists (ACOG) on whether the procedure that critics call partial-birth abortion is ever necessary to protect the health of the woman. The initial ACOG draft, which it shared with the White House, said that the panel “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.”

In a 1996 internal White House memo, Kagan wrote that it “would be a disaster” if that wording stood unchanged as the ACOG group’s public statement. She also drafted or helped draft and send to ACOG some new proposed language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” ACOG included this new language in its final statement, which was later cited by courts as medically authoritative.

Hatch pressed Kagan on whether she had influenced ACOG to change its own document to serve political rather than medical ends. She responded that the language that she had drafted was in fact exactly what she knew to be ACOG’s position, based on previous public and private statements by the group. “What ACOG thought and always conveyed to us was two things,” Kagan told Hatch. “They couldn’t think of a circumstance in which this was the only procedure that could work, but they could think of circumstances in which it was the best procedure for a woman’s health. Then we saw a draft statement which said the first, but not the second, which we also knew ACOG to believe [and] did not accurately reflect all of what ACOG thought.”

Kagan added: “There is no way I would have or could have intervened with ACOG … to change its medical views.”

Hatch did not sound satisfied, but did not really follow up.

Sen. Jeff Sessions of Alabama, who as the committee’s senior Republican has been Kagan’s main antagonist, continued his criticism of the treatment that she gave military recruiters as dean of Harvard Law School because of the law excluding gays from the military. And Republican staffers distributed piles of Pentagon documents to reporters who had no time to read them. But Sessions broke little or no new ground.

He did introduce a new theme by complaining that Kagan had not sought Supreme Court review of a preliminary federal appeals-court ruling adverse to the military on the “don’t ask, don’t tell” policy’s constitutionality.

But Kagan explained that in her view, the government would have a stronger case in the Supreme Court if it awaited a final decision in the lower courts. If Sessions had a good rebuttal to that, he kept it to himself.

Democrats, including Sen. Sheldon Whitehouse of Rhode Island, continued bashing the Roberts Court for its big decision in January allowing corporations to spend unlimited amounts on political campaigns–a decision that has been broadly unpopular with the public. But the Whitehouse critique sounded warmed over, as did his complaints about a 2008 decision limiting punitive damages in maritime cases, the complaints by Sen. Al Franken of Minnesota about decisions upholding arbitration clauses in consumer agreements, and the like.

“Franken is just making points about his view of the law,” wrote Tom Goldstein, the Supreme Court litigator who heads Scotusblog, which has been live-blogging the hearing. “This doesn’t really have anything to do with learning about Kagan’s views.” Exactly.

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Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.

Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.

And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit – she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.

Graham launched the dialogue about partisanship in the confirmation process by reading into the record a letter endorsing Kagan from her friend and former Harvard Law School classmate Miguel Estrada, one of several conservative legal luminaries who have endorsed Kagan. “Elena possesses a formidable intellect, an exemplary temperament, and a rare ability to disagree with others without being disagreeable,” wrote the Washington-based appellate advocate. “If such a person … is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”

This was the same Miguel Estrada whose own nomination to be a federal appeals court judge, by President Bush, was stalled and filibustered to death by Senate Democrats amid ugly attacks by liberal partisans. Estrada finally withdrew in disgust in 2003.

Asked by Graham about Estrada, Kagan called him “a great lawyer and a great human being,” adding later that “he is qualified to sit as an appellate judge–he is qualified to sit as a Supreme Court justice.” When Graham asked Kagan to send him a letter saying the same, she agreed.

Graham admitted that it was only natural that a Democratic president would pick progressives such as Kagan for the Supreme Court–and that a Republican president would pick conservatives. Kagan agreed again, in the process acknowledging that “my political views are generally progressive.”

The message to Democrats, and to the country, was that Graham would strive to counteract partisan attacks by Republicans on well-qualified Democratic nominees–and that his Democratic colleagues should show the same consideration to the next GOP president’s nominees. On that point, Kagan didn’t quite say that she agreed. But she came close.

Then Graham switched gears, saying, “Let’s talk about the war.” He expressed pleasure, again, with Kagan’s prior statements that “we are at war with Al Qaeda and the Taliban,” and with a legal brief that she had approved as solicitor general opposing judicial review of the detention of suspected enemy combatants at the Bagram Air Base in Afghanistan. “Some of your supporters are going to be unnerved” by that brief, Graham observed. And “some of your critics will like what’s in there.”

Kagan carefully avoided saying whether her personal views agreed with the Obama positions that she has defended in court. But Graham pronounced himself satisfied that she did agree.

More to the point, the senator also brought up his own lonely efforts to make a deal with the Obama administration on bipartisan legislation, setting new policies such as periodic reviews to assess whether people detained indefinitely as enemy combatants are still dangerous. Would it be “desirable” for the president and Congress to work together on such legislation, Graham asked.

Kagan avoided saying what President Obama should do. After all, she was well aware that he has been skittish about working with Graham both because leftist groups have passionately attacked any thought of detention legislation and because Republicans might insert unacceptable provisions.

But Kagan did give Graham an answer that he liked. She stressed her own previous testimony that courts would and should be more likely to defer to a law passed by Congress and signed by the president than to a policy of the president alone.

All in all, Graham accomplished more on Tuesday than any other committee member. And it’s not hard to imagine some of the people watching on television saying to themselves “I like him. And I like her.”

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But Kagan gave no ground. She politely contradicted Sessions even as he bluntly challenged her responses. Kagan repeatedly stressed that she had always revered the military and those who serve in it and had made this clear as dean by regularly honoring students who had served or planned to serve in the military.

She also emphasized that she had violated no law and had insured military recruiters ample access to Harvard law students and to the campus–even as she limited the law school’s assistance to military recruiters. This, she said, was in keeping with a longstanding law-school policy disfavoring any employer that discriminated against gay people.

Kagan’s testimony was truthful and precise. But whether the Sessions attacks resonated with an American public that has high respect for men and women in uniform remains to be seen.

In earlier questioning, Sen. Patrick Leahy, the committee’s Democratic chairman, used softball questions to elicit testimony by Kagan that recent decisions recognizing a constitutional right to own guns for self-defense are “settled law.” This was significant because the court’s three more-liberal members and Justice John Paul Stevens, who retired effective Monday, implied in dissenting opinions in Monday’s big gun-rights decision that they would like to overturn it and a 2008 decision that had set the stage for it. Kagan’s testimony sounded fairly close to a commitment not to vote to overturn those decisions.

Leahy sounded pleased. Though liberal on most issues, he supports gun rights, which are popular with his Vermont constituents.

As to the military, Kagan testified that its recruiters “had access to Harvard students every single day I was dean” and that she had always made clear that military service was “the most import and honorable way any person can serve his or her country.” Leahy seconded her by reading into the record a letter praising Kagan’s homage to the military from a former Harvard student who had served.

Kagan said that the restrictions that she had placed for a time on military access through the law school’s Office of Career Services were designed to honor the school’s antidiscrimination policy and protect gay and lesbian students while at the same time working with a veterans group to accommodate students who wanted to meet with military recruiters.

But Sessions accused her of violating a law called the Solomon Amendment during the period in 2004 and 2005 when she denied the U.S. military access to the career-services office that the law school provided to other employers. Kagan stressed that the Solomon Amendment did not require the school to provide military recruiters full access–or, indeed, any access at all–but rather called for the government to deny federal funding to any educational institution that did not meet certain conditions. She also argued that she had thought the law school had complied with the conditions specified by the Solomon Amendment.

Sessions pointed out that the Supreme Court had unanimously rejected the law school’s interpretation in a 2006 decision. But Kagan pointed out that nothing in the court’s decision suggested that noncompliance with the Solomon Amendment would have any consequence other than denial of federal funds.

Kagan also noted that when the military had threatened to take concrete steps to cut off Harvard University’s more than $300 million in federal funds, she and Harvard had done exactly as the military requested and given recruiters access.

Confronted by Sessions with a statement she had made as dean that the military’s discrimination against gays was a “profound moral wrong,” Kagan responded: “I believed it was unjust. I believed it then. I believe it now.”

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Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.

Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.

And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit– she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.

Graham launched the dialogue about partisanship in the confirmation process by reading into the record a letter endorsing Kagan from her friend and former Harvard Law School classmate Miguel Estrada, one of several conservative legal luminaries who have endorsed Kagan. “Elena possesses a formidable intellect, an exemplary temperament, and a rare ability to disagree with others without being disagreeable,” wrote the Washington-based appellate advocate. “If such a person … is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”

This was the same Miguel Estrada whose own nomination to be a federal appeals court judge, by President Bush, was stalled and filibustered to death by Senate Democrats amid ugly attacks by liberal partisans. Estrada finally withdrew in disgust in 2003.

Asked by Graham about Estrada, Kagan called him “a great lawyer and a great human being,” adding later that “he is qualified to sit as an appellate judge–he is qualified to sit as a Supreme Court justice.” When Graham asked Kagan to send him a letter saying the same, she agreed.

Graham admitted that it was only natural that a Democratic president would pick progressives such as Kagan for the Supreme Court–and that a Republican president would pick conservatives. Kagan agreed again, in the process acknowledging that “my political views are generally progressive.”

The message to Democrats, and to the country, was that Graham would strive to counteract partisan attacks by Republicans on well-qualified Democratic nominees–and that his Democratic colleagues should show the same consideration to the next GOP president’s nominees. On that point, Kagan didn’t quite say that she agreed. But she came close.

Then Graham switched gears, saying, “Let’s talk about the war.” He expressed pleasure, again, with Kagan’s prior statements that “we are at war with Al Qaeda and the Taliban,” and with a legal brief that she had approved as solicitor general opposing judicial review of the detention of suspected enemy combatants at the Bagram Air Base in Afghanistan. “Some of your supporters are going to be unnerved” by that brief, Graham observed. And “some of your critics will like what’s in there.”

Kagan carefully avoided saying whether her personal views agreed with the Obama positions that she has defended in court. But Graham pronounced himself satisfied that she did agree.

More to the point, the senator also brought up his own lonely efforts to make a deal with the Obama administration on bipartisan legislation, setting new policies such as periodic reviews to assess whether people detained indefinitely as enemy combatants are still dangerous. Would it be “desirable” for the president and Congress to work together on such legislation, Graham asked.

Kagan avoided saying what President Obama should do. After all, she was well aware that he has been skittish about working with Graham both because leftist groups have passionately attacked any thought of detention legislation and because Republicans might insert unacceptable provisions.

But Kagan did give Graham an answer that he liked. She stressed her own previous testimony that courts would and should be more likely to defer to a law passed by Congress and signed by the president than to a policy of the president alone.

All in all, Graham accomplished more on Tuesday than any other committee member. And it’s not hard to imagine some of the people watching on television saying to themselves “I like him. And I like her.”

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– The justices ruled by 5-4 that the University of California’s Hastings Law School can deny official recognition, funding, and campus facilities to a Christian student group that excludes openly gay students and others who will not follow the group’s religious tenets from obtaining leadership roles.

Justice Ginsburg’s majority opinion, with Justice Kennedy joining the four liberals this time, stressed that the Christian group was seeking “a preferential exemption” from Hastings’s policy of recognizing and assisting only student groups that “open eligibility for membership and leadership to all students.”

Justice Alito’s dissent, joined by the three other conservatives, complained that that the principle underlying the majority’s decision was “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” The case was Christian Legal Society v. Hastings College of the Law.

– The court struck down as an invasion of presidential power a key provision of the 2002 Sarbanes-Oxley law, which was designed to prevent corporate accounting scandals like those that had caused the collapse of Enron and WorldCom.

The now-voided provision provided an unusual two-level protection against removal for members of the newly created Public Company Accounting Oversight Board. It provided that neither the Securities and Exchange Commission nor the president could dismiss board members without some “cause.”

Chief Justice John Roberts wrote for the five-justice majority that “such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the president.” The four liberals dissented in the case, Free Enterprise Fund v. Public Company Accounting Oversight Board.

– A patent-law case widely followed by the business community ended up producing only a narrow ruling that left much unresolved. The justices passed up a chance to determine whether computer software, medical diagnostic tests, online shopping methods, and other business methods can be patented. They agreed only that patent law does not protect the business practice before the court in the case at hand, Bilski v. Kappos. It involved a method of hedging against the effects of weather on energy prices.

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The good news for gun control is that this new-found right may not restrict gun-control laws very much.

The 5-4 decision does appears to doom the exceptionally strict bans imposed by Chicago and Oak Park, Ill., on possession of handguns, even in the home for self-defense, that were before the court in the case at hand. A strict New York City handgun ban may also fall.

But no statewide gun-control law appears to be in immediate jeopardy, because nothing in Justice Samuel Alito’s majority opinion appeared to undercut the court’s assertions in a 2008 decision striking down a similarly strict handgun ban in the District of Columbia that a wide range of less stringent gun-control laws could be upheld as reasonable public-safety measures.
“We made it clear in Heller,” Alito wrote, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here.”

The 2008 decision held for the first time that the 2nd Amendment restricts federal gun-control laws by guaranteeing an individual right to own a gun for self defense, and not merely for service in the now-defunct state militias, as the four dissenters had argued.

Because the District of Columbia is a federal enclave, the 2008 decision did not resolve whether the 2nd Amendment also restricts state and local gun-control laws. That was the issue resolved by Monday’s decision.

The court split in both decisions along the 5-4 conservative-liberal line that has become so familiar, with the ideologically eclectic Justice Anthony Kennedy joining the four-justice conservative bloc.

Today’s decision was McDonald v. City of Chicago. The 2008 decision was District of Columbia v. Heller.

The majority, the two concurring opinions, and the two dissenting opinions in McDonald consumed 208 pages. The learned, historically rich debate focused the extent to which the post-Civil War 14th Amendment had been designed to apply – “incorporate,” in legal lingo–to the states and their localities the 2nd Amendment and other provisions of the Bill of Rights.

Those provisions had originally restricted only the federal government. The court has previously applied almost all of the first 10 amendments to the states and their localities except the 2nd Amendment.

In holding that the 14th Amendment was intended to apply the 2nd Amendment to the states, Justice Alito stressed especially the evidence that the framers of the 14th Amendment wanted to prevent Southern white racists from disarming freed slaves, the better to subjugate them.

Ninety-year-old Justice John Paul Stevens, in his last day of his 34 years on the court, wrote one dissent and Justice Stephen Breyer wrote the other, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

In a day of unusual solemnity at the Court, Chief Justice John Roberts began the session with a tribute to Justice Ginsburg’s husband Martin Ginsburg, who died Sunday. Roberts ended the session with a tribute to Justice Stevens. “We will miss your wisdom, your perceptive insights, and vast life experience, your unaffected decency, and resolute commitment to justice,” Roberts said to Stevens.

The Court also issued three other important decisions Monday, including a patent decision of enormous importance to the business community and software companies especially.’

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