WASHINGTON — Elena Kagan pledged to be a model of impartiality and restraint as a Supreme Court justice as the Senate opened confirmation hearings Monday, but she still braced for a grilling by Republicans who suggest she'd let liberal views color her rulings.
Breaking weeks of public silence since President Barack Obama nominated her to be the fourth woman in the court's history, Kagan called the Supreme Court "a wondrous institution" but one with limited powers under the Constitution. She billed herself as a consensus-builder for the ideologically polarized court and said she'd strive to emulate retiring Justice John Paul Stevens – the man she's been chosen to succeed – by "listening to each party with a mind as open as his ... to render impartial justice."
The 50-year-old solicitor general and former Harvard Law School dean appeared on track for confirmation before the court opens a new term in October as she delivered her brief statement at the end of a day of senatorial speechmaking in a cavernous hearing room on Capitol Hill. However, the deep partisan divide over the court – and Kagan's fitness to serve there – was evident.
Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, called Kagan's views "well within the legal mainstream."
Sen. Jeff Sessions of Alabama, the panel's top Republican, countered that her "career has been consumed more by politics than law."
Kagan, who has been cramming in private rehearsals for the thrust and parry of the hearings, faces a long Tuesday of close questioning by senators, friendly and otherwise. She's likely to field queries on a wide range of legal issues as well as her decision as Harvard Law dean to bar military recruiters from the campus career services office because of the Pentagon's ban on openly gay soldiers.
"It's not a coronation but a confirmation process," said Sessions. He said Kagan has "less real legal experience (than) any nominee in at least 50 years." And he said her stance on military recruitment violated the law – a legal conclusion disputed by the White House.
Kagan said her career has taught her about the importance of a modest court and open-mindedness when dealing with opposing views.
The Supreme Court "has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people," Kagan said. "I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law."
Her remarks seemed designed to blunt conservatives' argument that she would bend the law to suit her own agenda – and also to reassure liberals that she would be a counterweight to what they characterize as a pro-business, conservative-dominated court that has done just that in recent years.
Republicans and Democrats alike used the hearing to rail against "judicial activism." The GOP, seeking to tap into tea party disgust with a federal government many members say has overstepped its bounds, has portrayed Kagan as a prime example of what they charge is Obama's desire to populate the nation's court with liberals willing to stretch the law to achieve preferred policy outcomes.
"Too often, it sounds to me like Ms. Kagan shares the view of President Obama and (former) Justice (Thurgood) Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants," said Sen. Jon Kyl, R-Ariz. "The burden is on the nominee to show that her record demonstrates she can be a fair and impartial justice rather than one who would have an outcome-based approach."
Democrats countered that it was the current, conservative-dominated Supreme Court under Chief Justice John Roberts that has overreached, reversing precedents and ignoring the intent of Congress in rulings on issues from campaign finance to workplace rights.
"The rightward shift of the court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens. In decision after decision, this court bends the law to suit an ideology," said Sen. Chuck Schumer, D-N.Y. He said Kagan would bring "moderation and pragmatism to a court that is sorely in need of both."
Stevens was a frequent dissenter in a string of 5-4 rulings handed down by the court under Roberts, and Kagan took the witness stand to succeed him on the retiring justice's last day, when there were several such rulings. In one, a 5-4 majority said the right to bear arms can't be limited by state or local laws any more than by federal legislation. In another, the same majority struck down part of an anti-fraud law enacted in 2002 in response to scandals involving Enron and other corporations.
One Republican on the committee, Sen. Lindsey Graham of South Carolina, said he could say with certainty that Kagan's confirmation wouldn't change the balance of power on the court. But in a reference to Obama, he added, "I hope people will understand that elections do matter."
"I look forward to trying to better understand how you will be able to take political activism, association with liberal causes and park it when it becomes time to be a judge," Graham said.
Outside the hearing room, Sen. Mitch McConnell, R-Ky., the minority leader, suggested Kagan would have a hard time doing so.
"When we look at Elena Kagan's resume, what we find is a woman who has spent much of her adult life working to advance the goals of the Democratic Party," McConnell said on the Senate floor.
Associated Press Writers David Espo and Ann Sanner contributed to this report.
Senate Judiciary Committee: http://judiciary.senate.gov/