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Wednesday, April 7, 2010 as of 11:14 AM ET


Lee Ross

Supreme Court


New Kagan Testimony on Death Penalty & DOMA

July 9, 2010 - 6:23 PM | by: Lee Ross

New sworn testimony from Supreme Court nominee Elena Kagan reveals that she has no personal objection to the death penalty and will not take part a high-profile challenge to a controversial marriage law if it makes it to the high court and she’s confirmed to a seat on the bench.

Even though Kagan’s confirmation hearing ended last week some senators submitted written follow-up questions that Kagan answered and are now posted on the Senate Judiciary Committee’s website.

The simplest question that Kagan answered came from Sen. John Cornyn, R-Texas, who he asked if the nominee had any personal objection to the death penalty. “No,” was Kagan’s one word reply.

The written questions give senators an opportunity to reflect on what happened in the hearing and follow-up with additional inquiry or to address issues that never came up.

Sen. Jeff Sessions, R-Ala., the committee’s ranking Republican, picked up on a line of questions about a pair of cases involving the controversial Defense of Marriage Act (DOMA).

Kagan revealed that she had reviewed Justice Department briefs and took part in discussions involving a California case (Smelt v. United States) to such an extent that it would create a conflict of interest if gets appealed to the Supreme Court. “My participation in the case was sufficiently substantial that I would recuse myself if I were confirmed and this case were to come before the Court,” Kagan wrote.

Kagan also revealed that she had taken part in the behind-the-scenes action in another DOMA case (Gill v. Office of Personnel Management) from Massachusetts that was just decided Thursday with a judge striking down much of the law. Kagan refused to answer specific questions about the Justice Department’s internal deliberations on the cases but noted that the two “overlapped.” It isn’t clear if Kagan thinks that overlap would also require her to back out of the Massachusetts case.

She even acknowledged the unusual nature of these cases because the Solicitor General rarely takes part in significant legal discussions in cases still at the trial court level. The office handles all Supreme Court manners involving the federal government and keeps a close eye on cases before various federal appellate courts. Kagan’s name does not appear on the paperwork associated with the DOMA cases, nonetheless, her involvement reveals the significant interest the Obama Administration has in them.

In response to follow-up questions on abortion and the Second Amendment Kagan said the matters are “settled law.” And to the matter of judging cases based on her personal values instead of relying on the technical aspects of the law Kagan said, “[i]n some cases, there are significant constitutional values on both sides pushing in different directions. In analyzing such cases, judges must exercise prudence and judgment. In doing so, judges should look always to legal sources, and not to their own personal values, political beliefs, or policy views.”

In response to another question, Kagan said Oliver Wendell Holmes’s judicial philosophy was the most influential on the high court in the past 100 years.

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