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Kagan finishes Supreme Court confirmation hearings

By Robert Barnes and Amy Goldstein
Washington Post Staff Writer
Thursday, July 1, 2010; A04

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.

Kagan told other White House staff members that they must insist that the group add language saying it might be the best option for the woman.

"That bothers me that you -- that you intervened in that particular area in that way," Hatch said, adding that it had ramifications for Congress and in court deliberations on the issue.

But Kagan said she was only insisting that both statements be included, which she knew to be the position of the doctors group. In fact, she said, the group opposed the legislation that would ban the procedure.

"Senator Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views on the question," Kagan said.

Sen. Jon Kyl (R-Ariz.) pressed Kagan on whether her statement at her solicitor general confirmation hearings that there is not a constitutional right to same-sex marriage is her personal opinion or merely a reflection of current law.

"I don't think that that would be appropriate" to answer, she said. She said pending cases might call on the court to make just such a decision.

Kagan was also called upon again to explain her decision as dean of Harvard Law School to deny the military use of the school's career services office for recruiting. She said the decision was based on the fact that the military could not agree to the university's nondiscrimination policy.

The "sole result and impact," Cornyn said, "was to stigmatize the United States military on the campus -- the services that you say that you honor."

Kagan said she strongly objects to the "don't ask, don't tell" policy. But she said her decision was not a protest but a sign of support for the law school's gay students who wanted to serve.

Sessions found a polite way to challenge her veracity, saying: "I believe your testimony was too consistent with an inaccurate spin" advanced by the White House.

Still, by the end, Republican senators seemed to acknowledge that she will be confirmed. Sen. Lindsey O. Graham (S.C.), the committee Republican considered most likely to support the nominee, asked her to consider technological advances in preserving the viability of a fetus when considering abortion cases. She promised Sen. Tom Coburn (R-Okla.) that she had reread the Federalist Papers.

Under questioning from Democrats, Kagan repeatedly bypassed opportunities to criticize the recent work of the court and at times defended Roberts and Justices Anthony M. Kennedy and Antonin Scalia.

"Every justice has to do what he or she thinks is right on the law," she replied when Whitehouse asked whether she was concerned by recent 5 to 4 rulings.

"I'm sure everybody up there is acting in good faith," she said. "You wouldn't want the judicial process to become in any way a bargaining process or a logrolling process," she added. "You wouldn't want people to trade with each other -- you know, 'You'll vote this way, and I'll vote that way, and then we can . . . get some unanimous decisions.' "

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