Kagan seems to be cruising toward easy confirmation

McClatchy NewspapersJune 30, 2010 

WASHINGTON — Supreme Court nominee Elena Kagan on Wednesday appeared to be cruising toward relatively easy confirmation, as she spent a third day assuring Senate Judiciary Committee members that she has no preset ideological agenda.

After spending 10 hours answering questions and fending off partisan thrusts Tuesday, Kagan returned for what could be her final day of testimony.

"I do hope we can learn more about the nominee," said Sen. Jeff Sessions of Alabama, the committee's top Republican and Kagan's most aggressive interrogator.

President Barack Obama nominated Kagan, 50, to replace Justice John Paul Stevens, who's retiring at age 90. Her hearing so far has followed what's become a standard judicial confirmation script, as sympathetic Democrats build her up and skeptical Republicans try to knock her down a notch or two.

The largely predictable give-and-take was exemplified again Wednesday as Sen. Sheldon Whitehouse, D-R.I., described what he seeks in a nominee:

"They must respect the role of Congress ... they must not prejudge any case, but listen to every party that comes before them, that they must respect precedent and limit themselves to the issues that the court must decide," Whitehouse said.

"I do agree with that," Kagan replied.

The 19 members of the Judiciary Committee each had 30 minutes to question Kagan during the first round. The second round of questions, scheduled to begin later Wednesday, was likely to be shorter.

Republicans and Democrats alike have voiced concern about whether Kagan would respect legal precedent. Members of both parties have stressed that they don't want judicial activists legislating from the bench, though they pick different examples to make their cases.

Sen. Al Franken, D-Minn., for instance, cited a controversial campaign finance ruling that overturned a 1990 precedent as an example of judicial activism.

To all lawmakers, Kagan essentially said: Don't worry.

"The doctrine of precedent is in large part a doctrine of constraint," she said, adding that "judges should realize they're not the most important people in our democratic system of government."

At the same time, Kagan stressed that judging isn't a "robotic enterprise." That's particularly true at the Supreme Court level, she said, "where the hardest cases go."

As a result, "judges do in many of these cases have to exercise judgment. They're not easy calls. That doesn't mean that they're doing anything other than applying law."

Democrats control 58 of the 100 Senate seats, and no Democrat has expressed opposition to Kagan or even suggested it. It's unclear where Republicans stand, though Sen. Lindsey Graham, R-S.C., appeared sympathetic to Kagan on Tuesday.

Graham was the only one of the committee's seven Republicans to back Obama nominee Sonia Sotomayor for the Supreme Court last year. The committee has 12 Democrats.

Sessions wasn't convinced of Kagan's qualifications, saying Wednesday, "We need to know a little bit more of what we can expect of you as a judge."

He still wasn't sure, he said, "whether you'd be more like John Roberts or more like Ruth Bader Ginsburg."

ON THE WEB

Elena Kagan's resume

Senate roll call vote on Kagan's solicitor general nomination

Senate roll call vote on Sonia Sotomayor's nomination

Sen. Leahy on Kagan's nomination

Sen. Sessions on Kagan's nomination

Sen. McConnell on Kagan's nomination

Kagan's University of Chicago background

MORE FROM MCCLATCHY

Live blogging the Kagan hearing

Kagan pushes back on GOP questioning

Kagan steers clear of specifics in opening statement

Kagan no stranger to the travails of confirmation

Judicial experience a fairly new expectation for Supreme Court

Kagan nomination could influence November elections

For more McClatchy politics coverage visit Planet Washington

McClatchy Newspapers 2010

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