I did not see this part of Ms. Kagan's testimony, but the AP reports it this way:
Supreme Court nominee Elena Kagan is reaffirming her support for the death penalty, saying its constitutionality is "established law."
Under questioning by Democratic Sen. Dick Durbin at her confirmation hearing, Kagan says she has a different outlook than her mentor, the late Justice Thurgood Marshall, who dissented in every death penalty case based on moral grounds.
Kagan says she believes the death penalty is "settled precedent going forward" and generally should not be disrupted.
Kagan is a smart cookie for sure. She's supple and elusive without being off-putting. Death penalty backers should not be too cheerful about Kagan's response, however, given that she appears to be describing the law as it exists. The trick here is that the Supreme Court gets to change the law as it exists, and the Justices most willing to do so are the ones who, like Kagan, subscribe to the "living document" theory of the Constitution.
Still, Kagan's answer that the death penalty is settled precedent "going forward" was about as good as we were going to get, and at least slightly re-assuring.