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The Kagan Paper Trail and The Kagan Hearings, Cont.

Friday, May 14, 2010  |  posted by Hugh Hewitt
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Byron York joins the effort to call attention to Solicitor General Kagan’s lengthy paper trail.

York’s assumption, shared by Newsweek’s Howard Fineman and The New Republic’s Jonathan Chait, is that all of the Kagan files in the Clinton Library should be released.

I discussed the subject as well as other aspects of the Kagan nomination with Republican Senate Whip Jon Kyl on yesterday’s program. The transcript is here.

“She worked in the Clinton administration both on the Domestic Policy Council, and also the White House Counsel’s Office, and her resume’ itself discloses that she played a prominent role in a variety of things, of course, as a resume’ would,” Senator Kyl said. “We need to find out what that role was. And those records were not obtained in her first confirmation, so they will be requested, and I would hope that the administration would be forthcoming, and whatever records bear on her role there that would be relevant to her Supreme Court confirmation process, we will need to get.”

There was also this exchange:

HH: Will you be asking Elena Kagan about Miranda rights and suspected terrorists? And will you be asking her about the surveillance programs that were compromised by the New York Times and others in the media?

JK: The answer is yes, but I’m not exactly sure how. And here’s why I say that. Cases that are going to come before her on the Supreme Court, if she is confirmed, she shouldn’t be commenting on. But she still has to sort of give us an idea that she doesn’t have preconceived notions about how those cases should come out, should be decided. And so, and we also have a right to question her about her general judicial philosophy about what various amendments to the Constitution mean. So there’s a difficult balance between not getting too close to the facts of cases that she might actually be called upon to determine, and yet find out with enough specificity as to how she might interpret different provision of the Constitution to have a sense of whether she will approach the judging in a fair and balanced way, or with a preconceived notion.

The Kagan hearings will occur at a crucial moment in the country’s war with the jihadists –after four jihadi attacks within the United States. I hope at least the GOP senators on Judiciary use much of their time to elicit the SG’s views on how the Constitution allows us to defend ourselves from these threats.

I also asked Mark Steyn about the new arrests in the Times Square bombing case, and he pointed out that “[t]here are no lone wolves,” which is certainly news to Janet Napolitano. Steyn continued:

There are people who spontaneously combust, and sort of get sudden jihad syndrome. But even in that instance, they’re plugged into really quite sophisticated networks not just throughout the United States, but throughout the broader Western world. And it’s a huge advantage, if you compare the way it was with the KGB during the Cold War, because you’ve got people who are ideologically motivated, who have strong local networks, and you don’t have to do all the sort of dead drops, you know, leaving the instructions for the guy under the rock in the park like they had to do in the Cold War. You actually have sophisticated networks operating, more or less, in plain sight.

How the U.S. uncovers those networks with the Constitution’s blessings is a key legal debate in the years ahead. The SG can discuss it without commenting on specific cases if the senators are committed to fashioning general questions and then getting out of the way of her answers.

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