Kagan: Parties Split on Reviews

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan ended two days of questioning by Senate Judiciary Committee members on Wednesday afternoon [June 30] with reviews of her performance divided along partisan lines but her eventual confirmation seemingly assured.
      Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., ended the third day of the hearing late Wednesday afternoon with an explicit endorsement of Kagan’s legal knowledge and judgment. He closed by citing Kagan’s pledge in her opening statement on Monday to decide cases “impartially” and “modestly.” Leahy concluded: “Solicitor General Kagan, I believe you.”
      “I thought the president made a wise choice when he made it,” Leahy told reporters afterward, “and I feel it even more strongly today.”
      In his final remarks in the hearing room, however, Alabama’s Jeff Sessions, the committee’s ranking Republican, laid out a negative portrait. He criticized her as a “legal progressive” — “a pernicious philosophy,” he said — and accused her of violating the law in limiting official aid to military recruiters while dean of Harvard Law School.
      “The combination of record and statements leave me uneasy,” Sessions said. He said he would study the record more before deciding whether or not to vote for Kagan’s confirmation.
      Earlier in the day, however, Arizona’s Jon Kyl, the Senate Republican whip, said a GOP filibuster was “highly improbable.” Democrats hold a 58-41 majority, with one seat vacant after the death on Monday of West Virginia Democrat Robert C. Byrd.
      Kagan was judiciously guarded in any disclosures of her personal or legal views in roughly 16 hours on the witness stand. Even so, Democrats praised her for what Rhode Island’s Sheldon Whitehouse called her “complete and candid” answers. Republican Kyl, however, pronounced Kagan “less forthcoming” than previous nominees.
      The final rounds of questions included some that consisted as much of disquisitions by senators than actual interrogation of the nominee. Democrat Sheldon Whitehouse of Rhode Island ticked off a list of “telltales” that he saw in Roberts Court decisions as indicating an “activist” agenda. Kagan demurred. “I assume the good faith of everybody on the court, and that is how I approach the institution,” she said.
      In his turn, Republican Tom Coburn of Oklahoma asked Kagan about declining public confidence in government, which he linked to what he called a loss of freedom in the past three decades. Kagan had no comment on the current degree of freedom, but agreed on the need for confidence in government. “The welfare of the country is best served if the American people have confidence” in official institutions.
      Kagan appeared poised throughout her questioning. She smiled frequently, laughed occasionally, never got evidently angry, and showed nothing more than slight resentment on more than a few occasions. She was guilty, however, of a few misstatements. She referred to “Senator” Kennedy when discussing an opinion by Justice Anthony M. Kennedy, and she misspoke to Sen. Benjamin Cardin, D-Md., by using the name of the doctor in the Supreme Court’s partial-birth abortion rulings: Carhart.
      The hearing began with a glimmer of light cast by a law review article that Kagan wrote as a law professor in 1995 critical of Supreme Court confirmation hearings as “vapid” and “hollow” because of nominees’ reluctance to give direct answers. As a nominee herself, however, Kagan repudiated the article as “out of balance” and proceeded largely to follow the tight-lipped practice of the three most recent nominees to the court: Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor.
      “There’s always some vapid and hollow aspects to a Supreme Court nomination,” remarked Utah Republican Orrin Hatch, who noted that he had voted on the confirmation of all eight of the current justices. After a pause, Hatch added of Kagan, “She’s been interesting.”