Kagan finishes Supreme Court confirmation hearings

The Senate Judiciary Committee continues confirmation hearings for Kagan, who pledged in prepared remarks to support judicial restraint and a "modest" role for the high court.
By Robert Barnes and Amy Goldstein
Washington Post Staff Writer
Thursday, July 1, 2010

Supreme Court nominee Elena Kagan navigated the last day of her confirmation testimony Wednesday, charting a course between Republican attempts to characterize her as a results-oriented social liberal and Democratic attempts to prod her to criticize as politically motivated the court she seeks to join.

Outside the committee room, Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) predicted confidently that "Solicitor General Kagan will be confirmed," and he got little argument from his Republican colleagues. Sen. John Cornyn (Tex.), one of Kagan's toughest questioners, referred to her as "soon-to-be Justice Kagan."

But that did not mean the nominee -- or Chief Justice John G. Roberts Jr. and his conservative colleagues on the court, for that matter -- had an easy day.

Republican senators pressed Kagan on the issues that have dominated her hearings from their side: her opposition to the military's "don't ask, don't tell" policy on service by gays, her actions on "partial birth" abortion during the Clinton administration, and her views on gun rights and whether there is a constitutional right to same-sex marriage.

Democrats repeatedly denounced the Roberts-led court as an activist bunch bent on finding new rights embedded in the Second Amendment, favoring corporations over workers and reaching out to demolish campaign finance regulations passed by Congress.

Sen. Sheldon Whitehouse (D-R.I.) criticized precedent-changing decisions "done 5 to 4 with Republican appointees only, driving the law in a different direction by the narrowest possible margin."

Kagan defended herself but tried to stay largely out of the fray. Leahy said she answered more than 500 questions during 17 hours of testimony, although Republicans and even some Democrats might quibble with the word "answered." It is a familiar complaint at confirmation hearings, yet Kagan was a contrast to last year's nominee, Justice Sonia Sotomayor.

Sotomayor carefully wrote down each question on a legal pad and was circumspect and cautious. Kagan was a bit looser. She took no notes and expanded on the court cases senators cited, even as she declined to "grade" them or say whether she thought they were correctly decided. She showed fatigue only once, when she called Sen. Benjamin L. Cardin (D-Md.) "Sen. Carhart," the name of a party in two of the court's famous abortion cases.

"I felt like I was back in my favorite classes in law school, listening to her encyclopedic knowledge of the law," Leahy told reporters after Kagan finished.

Even Sen. Jeff Sessions (Ala.), the committee's ranking Republican, said the panel had seen the nominee's "gifts and graces in many different ways." But he said he still did not know whether she would be "more like John Roberts or Ruth Bader Ginsburg."

Republican senators tried to make the case that Kagan's political views foretell how she would rule on important social issues.

Sen. Orrin G. Hatch (Utah) pressed her on a memo she wrote as a domestic policy aide to President Bill Clinton that said it would be a "disaster" if the American College of Obstetricians and Gynecologists released a finding that the procedure critics call partial-birth abortion was not the only option for preserving a woman's life or health.

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