I've been listening to some, not all, of the Kagan hearings. Today Kagan said (among many other things, of course) that a judge's or Justice's personal moral values should have no connection to her judging, and that constitutional adjudication is "law all the way down" (while acknowledging that many difficult legal questions arise on which reasonable judges can disagree about what the law requires, etc.). The notion that a judge's personal moral values have, and should have, absolutely no connection to his or her judging in any constitutional cases seems divorced from reality, and when an extremely intelligent person is put into the position of having to say something like this, perhaps the time has come to get rid of public confirmation hearings for Supreme Court nominees.
At least Kagan did say forthrightly that the original intent of the framers is only one factor that should be considered, and not always the most important or appropriate one, in deciding cases; she pointed out that many of the Supreme Court's free speech cases have interpreted the First Amendment in more expansive ways than the framers would have. That was a point well made -- and, incidentally, it served to highlight the absurdity of some assertions made by Senators about the framers. Sen. Cardin, for instance, said that the framers would have agreed with Brown v. Bd. of Education. This statement is either fairly pointless -- requiring one to ask what Madison, had he been alive in 1954, would have thought of the Brown decision -- or completely ahistorical. As anyone who has ever taken a junior high school civics class or a basic U.S. history course probably recalls, the Constitution tolerated not only segregation but also slavery (though it did provide for the eventual abolition of the slave trade), and it took the Civil War, and the post-Civil War amendments to the Constitution, to change that. The abolitionist William Lloyd Garrison viewed the original Constitution, because of its failure to confront slavery, as "a covenant with death and an agreement with hell." It's not necessary to endorse this precise language to see that the pre-Civil War Constitution was a deeply flawed document, something that should be kept in mind whenever people start blathering about the supposedly sacrosanct intent of the Framers.