Ms. Kagan added that, while the Constitution’s framers inserted numerous specific details, such as requiring senators to be at least 30 years old, “there are a range of other kinds of provisions in the Constitution of a much more general kind, and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts.”
Mr.Grassley asked her if judges should consider foreign law when making legal decisions.
Ms. Kagan said that, while “in favor of good ideas coming from wherever you can get them,” judges shouldn’t be bound by foreign legal precedents.
“Fundamentally, we have an American Constitution. Our Constitution is our own,” she said.
Ms. Kagan also said that, if confirmed, she would recuse herself from any case that she had been a counsel of record at any stage, or in any case that she had signed a brief. She estimated about 10 cases on next season’s Supreme Court docket would require her recusal.
“That’s a flat rule,” she said.