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Kagan says she would take a 'modest' approach on Supreme Court

By Alec MacGillis and Amy Goldstein
Washington Post Staff Writer
Tuesday, June 29, 2010; A01

Elena Kagan told the Senate Judiciary Committee at the opening of her confirmation hearings Monday that she would bring to the Supreme Court a "modest" approach, showing great deference to the other, elected branches of government.

The day was dominated as much by a broad ideological clash between Democrats and Republicans -- over judicial restraint and the proper reach of government -- as by the woman who would become the 112th justice of the nation's highest court.

Speaking in slow and deliberate tones, Kagan told the committee that her experience as a legislative aide, a White House adviser and most recently solicitor general had underscored for her the importance of a judicial branch that knows its bounds.

"The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one -- properly deferential to the decisions of the American people and their elected representatives," she said.

The democratic process, she added, "is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people."

These remarks, the only part of a 14-minute opening statement that hinted at her views, hold relevance for the justices' impending work. They may be called upon to assess the constitutionality of several products of Democratic governance, most notably the health-care overhaul passed in March.

And the remarks came in the context of a vigorous attempt by the Democrats on the panel to make the nomination battle about the direction of the court under Chief Justice John G. Roberts Jr. Pushing back against years of Republican rhetoric about "activist" liberal judges, one Democrat after another argued that it was Roberts and his conservative colleagues who were displaying true activism in overturning legislation such as restrictions on corporate spending on elections.

"We need a justice who can create moderate majorities on this extremely immoderate Supreme Court," said Sen. Charles E. Schumer (N.Y.). "The rightward shift under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens. In decision after decision, this court bends the law to suit an ideology. Judicial activism now has a new guise: judicial activism to pull the country to the right."

Although at moments they engaged in this debate, the committee's Republicans mostly sought to keep the spotlight on Kagan. After opening with a gracious tone, they moved quickly to frame her -- as Sen. Charles E. Grassley (Iowa) put it -- as a "political operative" who lacks not only judicial experience but also the in-depth legal experience of other non-judges nominated to the court. Her years in the Clinton White House and in academia, they said, left her as somewhat of a cipher in terms of her approach to the law.

"Ms. Kagan certainly has numerous talents and good qualities, but there are serious concerns about this nomination," said Sen. Jeff Sessions (Ala.), the panel's ranking Republican. Kagan, he added, has "less real legal experience of any nominee in at least 50 years," has "barely practiced law, and not with the intensity and duration from which real understanding occurs," has "never tried a case before a jury" and "argued her first appellate case just nine months ago."

"While academia certainly has value," he said, "there is no substitute for being in the harness of the law, handling real cases over a period of years."

Republicans also sought to paint Kagan as a product of an elite echelon far removed from the "regular people" with whom President Obama says he wants judges to empathize.

Her Princeton undergraduate thesis on socialism in New York, Sessions said, "seems to bemoan socialism's demise there." Sen. Jon Kyl (Ariz.) described her route through "Manhattan's Upper West Side, Princeton, Harvard Law and the upper reaches of the Democratic legal establishment." And Sen. Lindsey O. Graham (S.C.) said that Kagan's upbringing up in a "liberal household" is "something we'll need to talk about."

Kagan got a warmer review from one Republican: Scott Brown, the new senator from Massachusetts, who introduced her to the committee alongside Sen. John F. Kerry (D-Mass.). Kagan, Brown said, is "undoubtedly a brilliant woman who has served her country in a variety of capacities."

Barring the unforeseen, Kagan is expected to win confirmation from a Senate in which Republicans hold only 41 seats, and her arrival on the court would not tilt its ideological balance, given that she would replace the liberal Justice John Paul Stevens. But Senate Democrats are nonetheless seeking to use the process as an opportunity to stoke criticism of the Roberts court and lay the groundwork for what clashes could occur over the constitutionality of the Democratic agenda.

Committee Chairman Patrick J. Leahy (D-Vt.) made this goal plain, anticipating the argument over the constitutionality of the individual insurance mandate in the health-care law, which the legislation's supporters say is grounded in the Constitution's interstate-commerce clause and government's taxing powers. "When we discuss the Constitution's commerce clause or spending power, we are talking about congressional authority to pass laws to ensure protection of our communities from natural and manmade disasters, to encourage clean air and water, to provide health care or all Americans, to ensure safe food and drugs, to protect equal rights, to enforce safe workplaces and to provide a safety net for seniors," he said.

In addition to the court's decision in the Citizens United case on corporate spending on elections, Democrats cited as proof of the court's corporate bent its rejection of the $2.5 billion jury verdict against Exxon Mobil stemming from the 1989 Exxon Valdez oil spill. Sen. Dianne Feinstein (D-Calif.) also sharply criticized Monday's ruling affirming that Second Amendment rights apply to state and local gun laws.

Kagan sat through all 19 statements wearing an expression that, a few chuckles aside, was impassive to the point of looking almost ill at ease. Repeatedly, she found herself being quoted back her own words from a long-ago law review article. In it, she condemned the "vapid and hollow charade" of judicial confirmation hearings.

Senators of both parties hoped she would be true to her word and prove forthcoming in the upcoming days of questioning.

Said Sen. Tom Coburn (R-Okla.): "Why should we have this dance if we're not going to find out real answers about real issues about what you really believe?"

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