Missed Franken…bummer…[update:  he's back later..]

Hatch questioning now…changes the subject about military recruitment at Harvard after she makes minced meat out of his question…now he wants to talk about partial birth abortion…interrupts her answer before she's finished to re-ask the question…she destroys him…

Leahy now reading a letter of recommendation..”demonstrated fidelity to legal principal even if it means crossing a  political, ideological ally…this is an essential quality in a judge…deserves enthusiastic confirmation..”

Feinstein up:  One question – religious persecution – government separation from church protects us from religious discrimination what would be your approach to interpreting the establishment clause of the constitution…  if taxpayers don't have the ability to bring a case, who does have the ability to bring a case…

Kagan:  Suppose that a state government decides to give a voluntary exemption of a person to an otherwise applicable law because the law would impose a burden…the court has said with respect to this issue is that in order to prevent where the state does something…there needs to be some freedom for government to make religious accommodations… in general there needs to be a little bit of play in the joints in order to prevent the state from being hamstrung in this area…as to what establishment clause tests I would use is a hard question.. right now there a  multitude of tests…

Feinstein:  I've watched you and …your knowledge of the law and your ability to order your answers is very impressive…if you are confirmed you will be only the 4th female justice in  history…as the first female dean of Harvard,the first woman solicitor general, you've broken several glass ceilings…as of last month only 48 of the 163 active federal appeals court judges are women…we're making progress but every advance has been hard fought. …Ledbetter case….  once you cross the threshold and the door's open it remains open…wish I had said it to Sotomayor, but you're a wonderful role model for women…you're reasoned, have a commitment, a dedication and a staying power and you do us all well..

Grassley up..  (To Feinstein) Do I get to use your six minutes? 

Grassley:  Private property rights…Kelo case…urban redevelopment…

Kagan:  I've not commented on particular cases…in some sense what the courts did was to kick the question back into the political process…courts said thanks but no thanks…we think taking property from one person to give to another person is not appropriate public policy…a number of states have passed anti-kelo legislation which makes sure that the question never arises…

Grassley:  Are there any limits on this doctrine?

Kagan:  Court didn't go beyond the facts of the case..

Grassley:  Example of condemnation of an unconstitutional public taking?

Kagan:  I think probably the court meant that to give the property to another individual person under the guise of a public purpose was…

Grassley: Can you think of any areas where the SC has failed to provide adequate protection of constitutional rights?

Kagan:  Won't answer that question with that degree of specificity…court's job is to make sure that government doesn't overstep its proper balance…

Grassley:  [more about property rights..]

Grassley:  [now carrying water for gun fanatics -] 2nd amendment – federal background checks on gun purchases… was it your position that the president has authority to prevent firearms dealers from selling handguns without…

Kagan:  Clinton committed to Brady law…to keep guns out of the hands of criminals and insane people by background checks…interim system….consistent with existing law, constitution…

Grassley:  Only congress could do that…

Kagan:  Yes…

Grassley:  You still believe that the exec branch has the power to prohibit the sale of firearms without legislative authorization

Kagan:  As I said I never believed that the president had the ability to do that without authorization..

Grassley:  On 2nd amendment, self defense as a fundamental right…William Blackstone…natural right of resistance…the right of using arms for self-preservation and defense…is self defense a pre-exisitng fundamental right…?

Kagan:  Self-defense is the core of the 2nd amendment..

Grassley:  Moving on to marriage as a state issue:  do you believe that marriage is a question for the court to decide?

Kagan:  There is of course a case coming down the road so I want to be extremely careful and not prejudge any case that might come before me.

Grassley:  That is your right…

Grassley:  Baker v. Nelson…you're saying this may not be settled law?  What has changed in the 14th amendment that this is not a federal question?

Kagan:  I think the task of the court is to decide a case that comes before it…if it does come before it the task will be to consider the facts…

Grassley:  What weight would you give to Baker v. Nelson?

Kagan:  As I said, I think there is a question as to the weight to be given to summary dispositions…part of the reason a decision counts as precedent is a full process…this is my understanding of what I take to be consensus on this…

Grassley:  I'm disappointed that you didn't use the words “settled law” definitively as you have with other things the last few days.

Grassley's done.   Specter up…  [took Specter's part down]

Recessing for lunch, back at 1:10 pm central.  Not a lot of gusto here from the naysayers, just rote parroting of the GOP sound bytes..

They're baack…afternoon session

Really, it was a pretty dull day as confirmation hearings go…the GOP just didn't seem to have it in them to be their usual selves…so I took most of it down…but Al Franken, our hero, used his time bashing the Comcast merger, so we'll leave that in!  And Grassley asks for 5 more minutes at the end.

Franken:  I'm extremely concerned about the proposed merger between Comcast and Universal.  Media consolidation matters in a fundamental way…when the same company owns programming and runs the pipes that bring the programming that is a problem…reading Justice Black…freedom to combine to keep others from publishing is not guaranteed by the constitution..Comcast already powerful…if it owns both the pipes and programming would have the ability to keep others from publishing…could choose to favor its own programming..drive up cable bills…to make matters worse if Comcast and NBC merge, I'm worried that ATT and Horizon will also haave to buy and grow meaning fewer voices…anti-trust problem…do you agree with j black that freedom to publish is guaranteed by constitution but freedom to combine to keep others from publishing is not?

Kagan:  I think the comcast merger is under review so I want to steer clear of it…

Franken:  I'm  not asking you to be specific…

Kagan:  1st amendment does not provide a general defense to the anti-trust laws…anti-trust laws are anti-trust laws and apply to all companies..

Franken:  online speech – many of the pipes that carry speech are in the hands of corporations…cable companies, internet service providers…Sotomayor agreed there was a 1st amendment interest in ensureing internet stays open without corporate interference..do you believe the 1st amendment helps promote diverse voices?

Kagan:  1st amendment ensures public sphere…

Franken:  Does 1st amendment cover actions and behaviors by fed gov?

Kagan:  yes as well as by the states..

Franken:  could 1st amendment inform how the gov looks at anti-trust cases?

Kagan: I think I would defer to people who know more about anti-trust policy..

Franken:  Judicial activism – I'm glad Senator Graham brought this up…[jokes about always wanting to help Senator Graham…laughter] you said non-activist judges respect precedent, make narrow decisions and defer to other branches…recent cases seem to fall outside these three principles…[Franken doing an awesome job..it's getting a little wonky here..]  Justice Thurgood Marshall is one of the greatest lawyers and jurists in American history…Brown..ended segregation…proved separate but equal is unequal.. a giant of the American legal system..he wasn't an activist radical, but his views were very much in the mainstream and in line with constitutional jurisprudence since 1948 and before that…we need to be aware of that..

Kagan:  Justice Marshall is a hero of American law and a hero of mine.

Franken:  And of mine.

They're moving on…Grassley wants more time but Sen. Sessions next [skipping this].

Grassley:  ….If confirmed, will you find a creative way to make policy from the bench..?

Kagan: ….It's not personal views, it's not moral views, it's not political views – it's the law all the way down.

Grassley:  I gave you the opportunity to sum up what you've been saying all week, thank you. [laughter..why are the Republicans being so nice?]

Coburn back…[Signing off..]