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Elena Kagan completes Senate testimony

Thursday, July 1, 2010

WASHINGTON -- Cruising toward confirmation, Supreme Court nominee Elena Kagan completed Senate questioning Wednesday, unscathed by Republican challenges on abortion, gays in the military and gun rights while sidestepping partisan debate about GOP-named judges pulling the court to the right.

Kagan emerged from three days of vetting by the Senate Judiciary Committee much as she had begun, declaring she'd be an independent and impartial judge and denying Republican suggestions that she would be unable to separate her political leanings from her job as a justice.

Democrats said President Barack Obama's nominee to succeed retiring Justice John Paul Stevens was on track to become the fourth woman in Supreme Court history.

"Solicitor General Kagan will be confirmed," declared Sen. Patrick Leahy, D-Vt., the panel chairman.

Republicans acknowledged as much.

"I assume she will be," said Sen. John Cornyn, R-Texas.

Careful answers

Kagan, prompted by Democratic supporters on the panel, gave a blunt denunciation of "results-oriented judging," deciding cases based on preconceived conclusions, but she refused to join them in applying the criticism to the current court under conservative Chief Justice John Roberts. "I'm sure that everybody up there is acting in good faith," she said.

Sen. Jeff Sessions of Alabama, the top Republican on the panel, said the combination of some of Kagan's careful answers and her record "leaves me uneasy" about her confirmation.

Kagan, more expansive and animated during her third and final day in the witness chair for nationally televised hearings, relaxed enough to banter with senators about the sometimes-tedious proceedings, and her expectations of being confirmed.

"I can't come back?" she asked Leahy facetiously when he suggested that she should watch testimony by outside witnesses scheduled for this afternoon "with your feet up" somewhere.

Dodging Republican Sen. Lindsey Graham's attempts to draw her into naming a judge she considered an "activist," Kagan deadpanned, "I have a feeling if I do that, I'm going to end up doing many things that I regret."

Overall, she said of the hearings as they drew to a close, "I found it somewhat wearying but actually a great moment in my life."

On one controversial matter, Kagan defended her efforts as a domestic policy aide to Clinton to scale back a GOP-proposed ban on a procedure opponents call partial-birth abortion -- something she called "an incredibly difficult issue."

The former president, she said, "thought that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman."

Sen. Orrin Hatch, R-Utah, pressed Kagan about a note she wrote saying it would be "a disaster" if the American College of Obstetricians and Gynecologists issued a statement saying there was no case in which the procedure was necessary, and about her intervention to prevent the group from doing so.

She responded that the disaster would have been if the organization's statement didn't reflect its full view that in some instances, the procedure was "medically best."

"This was all done in order to present ... both to the president and to Congress the most accurate understanding of what this important organization of doctors believed," Kagan said.

Later, responding to Graham, Kagan denied that she had tried to allow the broadest possible practice of the procedure, in line with her own views on abortion.

"It's not true. I had no agenda with respect to this issue," Kagan said.

Questioned by Sen. Tom Coburn, R-Okla., on guns, Kagan said she accepts a recent ruling upholding individuals' rights to possess firearms, but she would not say whether she believed there was a "fundamental right" -- meaning one that applies to states as well as the federal government -- to bear arms.

A seemingly incredulous Coburn asked Kagan whether she believed in "unalienable rights," such as those referenced in the Declaration of Independence.

"You should not want me to act in any way on the basis of such a belief" in people's rights outside the Constitution and laws, Kagan retorted. "I think you should want me to act on the basis of law."

For the second day in a row, Kagan asserted she would be able to separate her personal and political views from her job as a justice.

"As a judge, you are on nobody's team. As a judge, you are an independent actor," Kagan said.

She also defended her decision as solicitor general not to pursue two cases challenging the constitutionality of the military's ban on openly gay soldiers. Sessions pressed her on that decision, given "your widely publicized opposition to the 'don't ask, don't tell' law" and a statute meant to bolster it.

Kagan said that one of the cases Sessions cited had upheld the law's constitutionality. In the other, after consulting with Pentagon lawyers, she said she made a strategic decision to wait before taking action.

Kagan asserted that in both cases, she had acted "consistently with the responsibility which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy."

Democrats used their time with Kagan largely to criticize a recent string of 5-4 decisions by the court, especially its January ruling that struck down long-standing precedent to say corporations and labor unions were free to spend their own money on political activity.

Sen. Sheldon Whitehouse, D-R.I., said justices named by Republican presidents were "driving the law in a different direction by the narrowest possible margin."

"I want to make it clear that I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do," Kagan said. But she added that she believes the court should seek to make less far-reaching decisions to engender more consensus, which she called "a very good thing for the judicial process and for the country."

Democratic Sen. Arlen Specter of Pennsylvania, thwarted several times in his attempts to get Kagan to say whether she would recommend that the Supreme Court hear specific cases, or weigh in on standards for deciding a case, said he was giving up -- and wondered aloud whether there was any way short of opposing her confirmation to get a straight answer.

"It would be my hope that we could find some place between voting no and having some sort of substantive answers," Specter said, "but I don't know that it would be useful to pursue these questions any further."


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