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Kagan Hearings Day 3, Church-State Liveblog E-mail
Written by Don Byrd   
Wednesday, 30 June 2010

Pre-hearing thoughts: Today looks to be the last chance to investigate Elena Kagan's views on religious liberty and a whole host of other issues. As in the last 2 days (see Day 1, Day 2), I will posting references to discussions relevant to church-state jurisprudence. 

Yesterday, frankly, the questioning was somewhat disappointing, even notwithstanding the lack of attention given the First Amendment. There has been a lot of repetition, too many speeches as opposed to honest questions, and a strange desire on the part of Senators to get the nominee to validate their own opinions about the current court and recent decisions.

Updates from today's hearing below:

5:35 - The committee has adjourned from public hearings for the day, bringing an end to questioning of Supreme Court nominee Elena Kagan.

5:20 - Senator Coburn (R-OK) asks one more question regarding an Establishment Clause issue -  following up on Kagan's earlier explanation of the coercion test - asking about its application to high school seniors. A transcript of those brief remarks are added to the end of this post, following my transcript of Kagan's remarks from earlier in the day on religious liberty issues.

3:06 - In response to Senator Cardin, Kagan notes that "coercion test" is appropriately applied more often to children in Establishment Clause cases, but concedes that this is a "contentious area of the law" [UPDATE: my rough transcript of the Q and A with both Senator Feinstein and Senator Cardin on these issues can be read at this post.]

3:05 - Senator Cardin (D-MD) follows up with General Kagan on Senator Feinstein's church-state questions, asking about special protections students should have under the Establishment Clause.

1:27 - Kagan hesitantly addresses the importance issue of taxpayer standing, because, she says a case regarding that issue could be before the court next term. She does show an understanding of the tradition of taxpayers being able to bring Establishment Clause claims against legislative action, but not against Executive action, though she notes that such claims could still be brought if plaintiffs could establish standing otherwise.

1:25 - As a conclusion, she emphasizes the purpose of the 2 clauses in making sure all Americans are full and equal citizens regardless of their belief (see this post for my rough transcript of this portion of her answer)

1:22 - Kagan calls the question of how to interpret the Establishment Clause a "hard, hard question". The look on her face suggests she means it. She notes that many judges have tried to kill the (in)famous Lemon test that has traditionally been used by the court to evaluate government action in church-state cases.

1:20 - Kagan emphasizes the importance of providing "play in the joints" between the 2 religion clauses to give state and local governments room to act without being in constant violation of one or the other.

1:15 - Senator Feinstein (D-CA) asks "What will be your approach to interpreting the Establishment Clause of the Constitution, and how do you believe it works with the Free Exercise clause. And then, if you could respond also on the question of standing, to sue, the ablity to bring a case in federal court." Answer coming...

11:50 - As committee members continue to use their time revisiting (mostly just arguing among themselves at this point) the Citizens United ruling, and the military recruiting controversy during Kagan's tenure at Harvard Law, I notice that Tony Perkins (not the actor who played Norman Bates in Psycho, but the head of the Family Research Council) is scheduled to be a minority witness tomorrow. Perkins has said that Kagan's views on nondiscrimination are "chilling for the freedom of speech and the freedom of religion."

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