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Partisan Divisions Mark Opening of Kagan Nomination Hearings

June 28, 2010 at 12:00 AM EST
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GWEN IFILL: Now: day one of the Elena Kagan confirmation hearings for the U.S. Supreme Court.

Congressional correspondent Kwame Holman has our report.

KWAME HOLMAN: A swarm of photographers greeted Solicitor General Elena Kagan as she arrived for the start of her confirmation hearings.

KWAME HOLMAN: She had been waiting nearly two months, since President Obama nominated her to replace the retiring Justice John Paul Stevens.

SEN. PATRICK LEAHY, D-Vt., Judiciary Committee chairman: As a student, she excelled…

KWAME HOLMAN: Then she waited some more as members of the Senate Judiciary Committee made their opening statements.

Chairman Patrick Leahy of Vermont.

SEN. PATRICK LEAHY: I believe that fair-minded people will find her judicial philosophy well within the legal mainstream. I welcome questions to Solicitor General Kagan about judicial independence, but I would urge senators on both sides to be fair. There is no basis to question her integrity. No one should presume that this intelligent woman who’s excelled during every part of her varied and distinguished career lacks independence.

KWAME HOLMAN: Still, party-line divisions were clearly on display. The ranking Republican, Jeff Sessions of Alabama, declared, it’s not a coronation, but a confirmation process.

SEN. JEFF SESSIONS, R-Ala.: Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it’s not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.

Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

KWAME HOLMAN: California Democrat Dianne Feinstein saw the issue of experience from a different perspective.

SEN. DIANNE FEINSTEIN, D-Calif.: The biggest criticism I have seen out there is that you’ve never been a judge. Frankly, I find this refreshing. The Roberts court is the first Supreme Court in history to be comprised entirely of former federal courts of appeals judges.

Throughout the history of the court, over one-third of the justices — 38 out of 111 — have had no prior judicial experience.

KWAME HOLMAN: Democrats also criticized the current court for overturning years of precedent.

Wisconsin’s Russ Feingold pointed to this year’s decision that wiped away limits on corporate and labor union spending in campaigns for president and Congress.

SEN. RUSS FEINGOLD, D-Wisc.: By acting in such an extreme and unjustified manner the court badly damaged its own integrity. By elevating the rights of corporations over the rights of the people, the court damaged our democracy.

Ms. Kagan, if you’re confirmed, I hope you’ll keep this in mind. I hope you’ll tread carefully and consider the reputation of the court as a whole when evaluating whether to overturn longstanding precedent in ways that will have such a dramatic impact on our political system.

KWAME HOLMAN: But Arizona Republican Jon Kyl warned, Kagan would be even more of an activist on the court. He pointed to her praise of the late Justice Thurgood Marshall.

SEN. JON KYL, R-Ariz., minority whip: Justice Marshall is a historic figure in many respects, and it is not surprising that as one of his clerks she held him in the highest regard. Justice Marshall’s judicial philosophy, however, is not what I would consider to be mainstream.

As he once explained, you do what you think is right and let the law catch up. He might be the epitome of a results-oriented judge. And, again, Ms. Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it, among other things, “a thing of glory.”

KWAME HOLMAN: That drew a retort from Democrat Dick Durbin of Illinois.

SEN. RICHARD DURBIN, D-Ill.: The results which Justice Marshall dedicated his life to broke down barriers of racial discrimination that had haunted America for generations.

And I might also add, his most famous case, Brown vs. the Board of Education, if that is an activist mind at work, we should be grateful as a nation that he argued before this Supreme Court, based on discrimination in this society, and changed America for the better.

KWAME HOLMAN: South Carolina’s Lindsey Graham was the only committee Republican to vote for Sonia Sotomayor’s nomination to the Supreme Court last year. He said it’s hardly unexpected that Kagan is a political liberal.

SEN. LINDSEY GRAHAM, R-S.C.: What did I expect from President Obama? Just about what I’m getting. And there are a lot of people who are surprised. Well, you shouldn’t have been, if you were listening.

So 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. That, to me, is your challenge.

KWAME HOLMAN: After listening to committee members’ views for several hours, it was the nominee’s turn to have her initial say. In her opening statement, the 50-year-old Kagan promised to be impartial and fair. And she told senators she would be properly deferential to the wishes of Congress.

ELENA KAGAN, Supreme Court nominee: 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.

And what the Supreme Court does is to safeguard the rule of law through a commitment to evenhandedness, principle and restraint.

The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one.

What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom and their representatives work hard to protect their interests.

The Supreme Court, of course, 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.

KWAME HOLMAN: In her 13-minute statement, Kagan said she learned as dean of Harvard Law School that no one has a monopoly on truth or wisdom.

ELENA KAGAN: I have learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I have learned the value of a habit Justice Stevens wrote about more than 50 years ago, of understanding before disagreeing.

I will make no pledges this week other than this one, that if confirmed, I will remember and abide by all these lessons. I will listen hard to every party before the court and to each of my colleagues. I will work hard, and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.

KWAME HOLMAN: If confirmed, Kagan would join Justices Ruth Bader Ginsburg and Sonia Sotomayor as the third woman on the court, the most ever.

SEN. PATRICK LEAHY: We stand in recess.

KWAME HOLMAN: Tomorrow morning, she faces the first round of questions by members of the Judiciary Committee.

GWEN IFILL: Judy Woodruff is up on Capitol Hill, where she has been anchoring our gavel-to-gavel coverage — Judy.

JUDY WOODRUFF: Hi, Gwen.

With me is Marcia Coyle, with us again, of “The National Law Journal,” wearing your second hat of the day.

JUDY WOODRUFF: You covered the Supreme Court. And you were here…

MARCIA COYLE, “The National Law Journal”: This morning.

JUDY WOODRUFF: And you were here in the Senate office building for the Kagan hearings.

We did hear Elena Kagan today, Marcia, say that she was going to be impartial as best she could, keep an open mind. How much of that is in reaction to what she heard today and in anticipation of comments from Republicans that she is as much a political creature as she is a legal one?

MARCIA COYLE: I think she knew before she came in today, based on comments that some senators had made to the press earlier, and she definitely knew after hearing the opening statements, that Republicans put forth a major concern that she is more political than legal, relying primarily on her years in the Clinton White House, which is really, in terms of documentation, all they have to go on earn about her.

So, I think she wanted to lay that to rest as much as she could before the questions began, that she also has a reputation honed in her years in academia for open-mindedness, an ability to bring together differing views and find commonality.

So, it was a very deliberate statement. And it didn’t have any of her usual spark and punchiness that she brings when she’s an advocate before the Supreme Court. I think she was sounding almost judicious.

JUDY WOODRUFF: She — she spoke slowly.

MARCIA COYLE: Yes.

JUDY WOODRUFF: She spoke very deliberately, as you said. And we do anticipate they’re going to talk about her years at the White House, a couple of years, and her time as dean at the Harvard Law School.

To what extent, Marcia, though, is this criticism that she’s inexperienced likely to stick, because, as several of the senators pointed out, a third of the justices who have ever sat on the Supreme Court had no judicial background?

MARCIA COYLE: Well, I think it will stick to a certain degree. I mean, she is a very different kind of nominee for these senators, perhaps not for the senators who sat more than 50 years ago.

She doesn’t have the practical legal experience of actually being in the courtroom, handling trials, talking to juries that other non-judicial nominees to the court had. Many of them, though, also had political experience. So, in that sense, she has a thin record.

But I think what we’re going to learn is that she brings a different kind of experience, and the public will have to judge whether they feel that is sufficient. She was, has been for the past year, solicitor general of the United States. Many say that that is the best preparation for a lawyer to go on to the Supreme Court.

And we will learn more about that job as the hearings progress. Also, just her — her — in academia, the years she has spent there, learning and studying and thinking about the law, it’s a different kind of experience, Judy.

JUDY WOODRUFF: There is a predictability to this, Marcia, 12 Democrats, seven Republicans. One expects the Democrats are going to say nice things, for the most part. The Republicans are going to challenge her.

What do we look for tomorrow and Wednesday — these hearings are expected to go on for another couple of days — for any sense of whether any of the criticism or the challenges are sticking in a way that could jeopardize her confirmation?

MARCIA COYLE: I think we have to listen to her. We have to see how she handles questions about issues that she dealt with when she was in the White House, some very controversial issues, like abortion, campaign finance, race.

It — it all really depends on how she answers those questions. She’s already had thrown back at her comments she wrote in a book review of, I believe it was Stephen Carter’s book “The Confirmation Mess,” in which she wrote how vapid confirmation hearings are and how…

JUDY WOODRUFF: Fifteen years ago, she wrote that.

MARCIA COYLE: Yes. Yes. But she’s in a very different position now. And it will be interesting to see if she can bring more substance to the answers to the questions the senators ask.

JUDY WOODRUFF: They are going to be challenging what she wrote when she wrote for The Daily Princetonian, the college newspaper, because there are no…

MARCIA COYLE: They have…

JUDY WOODRUFF: … opinions to go after.

MARCIA COYLE: They have. That’s right. They have gone all the way back to her college writings.

JUDY WOODRUFF: All right. Marcia Coyle will be back with me tomorrow to cover the first day of questioning of Elena Kagan.

Thank you, Marcia.

MARCIA COYLE: Well, my pleasure, Judy.