Supreme Court nominee Elena Kagan said she would be an “understanding” justice who decides future cases with an open mind, but Republicans wanted to know during her first round of hearings Monday was if she will interpret the Constitution based on her own liberal beliefs.
“I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law,” the former dean of Harvard Law School told the Senate Judiciary Committee. “I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide.”
It was the first time the 50-year-old nominee has spoken publicly since being nominated by President Barack Obama last month. Yet after sitting stoically through more than three hours of opening statements by every senator on the panel, she kept her opening statement brief.
Many Republicans on the panel, including Sen. Jeff Sessions (R.-Ala.), ranking member of the committee, questioned her liberal background and lack of experience.
“In many respects, Ms. Kagan’s career has been consumed more by politics than law,” Mr. Sessions said.
As the solicitor general, Kagan is the government’s top litigator to argue in front of the Supreme Court and she clerked for Justice Thurgood Marshall, but she spent most of her career in politics and served in the Clinton Administration as a White House aide.
She has never served on the bench as a judge and spent only a couple of years as a lawyer in private practice.
However, Sen. Dianne Feinstein, California Democrat, defended Kagan’s experience and said that she makes for a “strong nominee.”
“Frankly, I find this refreshing,” Feinstein said. “I believe that you are eminently confirmable.”
Republicans urged Kagan to be straightforward about her political leanings when she faces direct questioning on Tuesday.
Republicans signaled that Kagan will be grilled on specific issues, including gun control, abortion, and her decision to block military recruiting at Harvard Law School.
“It’s okay to be liberal,” said Sen. Lindsey Graham, South Carolina Republican. “It’s okay to disagree with us up here.”
Mr. Graham said he will question Kagan whether she can avoid channeling her political leanings when rendering decisions.
If confirmed to the court, she needs to take her political activism and liberal causes and “park it,” Graham said.
Sen. Patrick J. Leahy, Vermont Democrat and committee chairman, urged senators to be fair in their questioning of her during hearings this week.
“I believe the fair-minded people will find her philosophy well within the legal mainstream,” Leahy said. “No one should presume that this intelligent woman who has excelled during every part of her varied and distinguished career, lacks independence.”
During a break in the proceedings, Sen. John Cornyn, Texas Republican, told reporters Kagan must “testify truthfully.”
“It’s important to find out if she will move the court in a traditional or activist direction,” Cornyn said.
Kagan later testified that 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.
Republicans weren’t the only ones questioning what direction Kagan might take as a Supreme Court justice.
“Your judicial philosophy is almost invisible to us,” said Sen. Herb Kohl (D.-Wis.).
“We can gain some insight from your work for President Clinton and Justice Thurgood Marshall, but we have less evidence about what sort of judge you will be than on any nominee in recent memory,” Kohl said.
Some Republicans went a step further and questioned whether what they might learn in any Supreme Court nomination hearing would actually bear out in the future.
Sen. Tom Coburn (R.-Okla.) called the process “schizophrenic.”
“Why should we have this dance if we’re not going to find out real answers about real issues about what you really believe?” Coburn said.
Sen. Orrin Hatch, Utah Republican, said the important question for them is “will the Constitution control her or will she try to control the Constitution.”
“Does she believe that judges may control the Constitution by changing its meaning? Does she believe that judges may change the meaning of statutes in order to meet what judges believe are new social objectives?” Hatch asked.
“As in previous hearings, there will no doubt be some tension during this hearing between what senators want to know and what Ms. Kagan is willing to tell us,” Hatch said.
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