Kagan: 'Modest' Role on Court

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan promised the Senate Judiciary Committee on Monday that if confirmed she will decide cases “impartially” and “modestly” with an understanding of the court’s important but limited role in protecting liberty and the rule of law in the U.S. constitutional system.
      Kagan’s 12-minute opening statement came after Democrats on the committee showered her with praise for her “stellar” intellect and “mainstream” legal views even as Republicans began laying the groundwork for critical questions to begin on Tuesday.
      Alabama’s Jeff Sessions, the committee’s ranking Republican, criticized Kagan for a lack of “real legal experience” and her admiration for “activist judges,” including the Supreme Court justice for whom Kagan clerked in the late 1980s: Thurgood Marshall.
      Sessions and other Republicans also signaled they will question Kagan sharply about her role as dean of Harvard Law School in limiting aid to military recruiters for a period to protest the military’s “don’t ask, don’t tell” policy on service by gays and lesbians.
      In her statement, Kagan fondly recalled her service as Marshall’s law clerk and praised him for “his great struggle for racial justice.” Before serving on the court, Marshall had led the legal strategy that produced the landmark Brown v. Board of Education decision in 1954 outlawing racial segregation in public schools.
      Kagan served as an aide to the Senate Judiciary Committee itself during the 1993 confirmation hearing for Justice Ruth Bader Ginsburg and then in the late 1990s in the White House as associate counsel and later deputy domestic policy director to President Bill Clinton.
      Serving now as U.S. solicitor general, Kagan used her experience in the legislative and executive branches as the cue to underscore her appreciation of the court’s limited role. “The Supreme Court is a wondrous institution,” she said. “But my time 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.”
      Kagan followed the example of the three most recent Supreme Court nominees _ Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor _ in using her opening statement to link her personal narrative to broad themes of public service within the legal profession and devotion to liberty, justice, and the rule of law.
      “What the rule of law does is nothing less than to secure for each of us what our Constitution calls ‘the blessings of liberty’ — those rights and freedoms, that promise of equality, that have defined this nation since its founding,” Kagan said. “And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.”
      Kagan appears all but assured of confirmation from the Democratic-controlled Senate to succeed John Paul Stevens, who formally retires from the court on Tuesday [June 29] after 34-1/2 years on the bench. Stevens retires at age 90, the second oldest person ever to serve on the court; his tenure falls one day short of making him the second longest serving justice in history. He trails the record-setter, Justice William O. Douglas, whom he succeeded in 1975, and the 19th century justice, Stephen Field.
      Kagan sat patiently and unflappingly through opening statements from the Judiciary Committee’s 19 members, 12 Democrats and seven Republicans. Committee chairman Patrick J. Leahy of Vermont opened by describing Kagan’s qualifications as “unassailable” and her legal philosophy “well within the ideological mainstream.”
      Sessions followed immediately with sharp criticism, noting that Kagan had never tried a case before a jury and made her first appellate court argument only nine months ago as solicitor general. In that case, Kagan unsuccessfully urged the Supreme Court to uphold the McCain-Feingold campaign finance reform law.
      The Roberts Court’s decision in the case, Citizens United v. Federal Election Commission, was one of several rulings that Democratic senators cited as examples of the court’s conservative-leaning judicial activism that they hoped Kagan would counteract. “We need a justice who can create a moderate majority on this immoderate court,” said Sen. Charles Schumer, D-N.Y.
      For their part, Republicans said they will be using their question time to look for evidence of judicial activism in Kagan’s philosophy. “It’s important to find whether you’d move the court in a traditionalist or activist direction,” said Sen. John Cornyn, R-Texas.
      The hearing resumes at 9 a.m. on Tuesday, with Leahy to begin an opening round in which senators will have 30 minutes each to pose questions for Kagan. Barring unexpected developments, Kagan is likely to remain on the stand into a third day, with the hearing to wrap up by the end of the week after hearing from a total of 24 public witnesses chosen by the Democratic majority and Republican minority.