At hearings, Elena Kagan charmed her critics -- and seemed to enjoy herself

By Ann Gerhart
Washington Post Staff Writer
Thursday, July 1, 2010; A04

By the end of 17 hours of senatorial grilling, lecturing and badgering, Supreme Court nominee Elena Kagan had revealed at least one passion: She loves this stuff.

Put the woman in front of some stern interrogators who make her explain a dozen times why Harvard Law School doesn't require constitutional law in the very first year, and she comes alive.

Over two days at the microphone, Kagan gave the impression that there was no place she would rather be than seeking to address all questions of the members of the Senate Judiciary Committee. She assured even the openly hostile Republican members that she knows they are men of "good faith." And when the Democrats grumbled about the court under Chief Justice John G. Roberts Jr., she enthusiastically responded that he, too, certainly is a man of "good faith."

(Photos of Kagan charming her critics at her confirmation hearings)

She was expansive on the question of whether a judge is an umpire (in some ways), a robot (never), an ideologue (so wrong) or an empath (certainly not).

Original intent. Commerce clause. Forced arbitration. She took them all on, thoughtfully and pleasantly turning the most abstruse legal concepts into real English. She talked of needing to have "a little play in the joints" when comparing legal principles, offering up an "oh, thanks but no thanks" in explaining another and refusing to "count her chickens" before hatching when Sen. Arlen Specter (D-Pa.) tried, without success, to have her speculate on how she might examine something as a Supreme Court justice. When she needed to play for time in constructing an answer, instead of fidgeting or fumbling, Kagan frequently said "gosh." When she needed to deflect, she made quick jokes.

Kagan displayed such relish and expertise at the hearing table that she could hire herself out as a stunt witness and work five days a week on Capitol Hill. But she seems a cinch to take her place on the bench as the fourth female justice in the court's history.

Her harshest critics Tuesday were beaming at her Wednesday. "I know this hasn't been the most pleasant experience for you," said Sen. Tom Coburn (R-Okla.).

She nearly interrupted him to report with evident pleasure: "I think it's been terrific, that everybody has been very fair and very considerate, and I hope you found it informative. I found it somewhat wearying, but actually a great moment in my life."

A day earlier Coburn seemed to wound Kagan slightly when he scolded: "I would not want to be a Supreme Court justice with you. I think I'd get run over!" The corners of her mouth slumped just a bit.

Now, he congratulated her for her performance and said, "You . . . light up the room."

Sen. Jeff Sessions (R-Ala.), who came close in interviews Tuesday to accusing the former Harvard Law School dean of lying in describing her handling of military recruiting on campus, seemed all but ready to swear her in by Wednesday evening.

Kagan's upward path

Kagan, 50, has had a remarkable trajectory to reach this moment, with just a few disappointments that each opened a door to something better.

She was educated at Princeton, Oxford and Harvard Law School, then clerked for federal appeals judge Abner Mikva -- who once offered Barack Obama a clerkship -- and then Justice Thurgood Marshall, whose son observed the hearings Wednesday, along with presidential adviser Valerie Jarrett.

After four years in the Clinton White House, as a domestic policy adviser and a lawyer in the counsel's office, Kagan was appointed by President Bill Clinton to the federal bench, but Republicans blocked her nomination. She did not get tenure at the University of Chicago, where she had been a law lecturer before her stint in Washington, but she got a job as a visiting professor at Harvard, which quickly led to becoming the school's first female dean. She did not become president of the university, but she gained another choice legal job -- as the first female solicitor general.

During her confirmation hearings for that job last year, she faced many of the same senators. And in signature Kagan style, she seemed able to summon up, without any notes, memories of exactly what she told them then.

Nothing personal

She acknowledged having progressive politics and said her beliefs would have no bearing on her judgment.

At each point in her life, Kagan asserted, her decisions were not a projection of some personal vision for righting society's wrongs. Rather, she was merely a representative or guardian of an institution. At Harvard, she was not professing a political position when she banned military recruiters from the career center, she said; she was trying to observe the law and remain faithful to the university's anti-discrimination policy (which frowned on "don't ask, don't tell"). As a White House aide, she was not professing a political position but strategizing how to accomplish Clinton's policy objectives. As solicitor general, she was not professing a political position in refusing to challenge "don't ask, don't tell," nor was she trying to curb political speech when she argued to uphold aspects of campaign finance law.

So deft was she at discoursing on all these subjects that no one asked Kagan whom she would represent as a justice on the Supreme Court and what would animate her if she arrived there.

The closest anyone came was when Sen. Herb Kohl (D-Wis.) pushed her Tuesday to say why she wants to be a justice. It took him about five questions, of increasing persistence, until finally Kagan said this:

"That's, I think, the right way for a judge to do a job, is one case at a time, thinking about the case fairly and objectively and impartially. And in -- in the course of doing that, of course, people's lives change, because law has an effect on people. And you hope very much that law improves people's lives and has a beneficial effect on our society. That's the entire purpose of law."

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