In a third day of hearings for Elena Kagan, GOP senators on the Judiciary Committee continued to scrutinize the U.S. Supreme Court nominee's military recruitment policy at Harvard, but they also tried to glean intelligence about her views on same-sex marriage — with little success.
“Do you believe that marriage is a question reserved for the states to decide?” asked Sen. Charles Grassley of Iowa.
In light of the fact that the challenge to California’s Proposition 8 might be heard by the Supreme Court one day, Kagan said, “I want to be extremely careful about this question and not to in any way prejudge any case that might come before me.”
Grassley then turned to Baker v. Nelson, a 1970 case that challenged a Minnesota law denying same-sex couples the right to marry. After the Minnesota supreme court ruled the statute did not violate the U.S. Constitution, the case was appealed to the U.S. Supreme Court, which ultimately dismissed the case in a summary judgment citing the lack of a “substantial federal question.”
Grassley asked Kagan if she agreed with that decision and considered it “settled law,” thereby setting a precedent for all future cases.
Kagan responded that her “best understanding” of that ruling was that it held only “some precedential weight.”
“The view that most people hold, I think, is that it’s entitled to some precedential weight but not the weight that would be given to a fully argued, fully briefed decision.”
Grassley concluded his inquiry, noting that he was “disappointed” that Kagan didn’t view Baker v. Nelson as “settled law.”
Sen. Jon Kyl of Arizona later tried to nail down Kagan on whether she believed in a constitutional right to same-sex marriage. Kyl recited the answer Kagan gave last year during her confirmation hearing for solicitor general in which she said, “There is no federal constitutional right to same-sex marriage.”
Kagan explained that her answer should be taken in the context of a response to a question about whether she would defend the constitutionality of the Defense of Marriage Act.
“I was stating that I understood the law and that I accepted the state of the law,” she said, “and that I was going to perform my responsibility as solicitor general.”
Kyl followed up by asking is she would say today “whether the Constitution could be properly read to include such a right.”
“I don't think that would be appropriate,” Kagan answered, invoking the marriage case that's wending its way through the courts.
Kagan has now completed her testimony; the Judiciary Committee will question outside witnesses Thursday.