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Kagan Faces Few Nomination Roadblocks in Third Day of Senate Questioning

June 30, 2010 at 12:00 AM EDT

JEFFREY BROWN: And now: day three of Elena Kagan’s appearance before the Senate committee charged with her nomination to the Supreme Court.

Once again, congressional correspondent Kwame Holman reports.

KWAME HOLMAN: As the questioning of Elena Kagan wound down, it appeared the nominee had emerged largely unscathed.

The chairman of the Judiciary Committee, Vermont Democrat Patrick Leahy, summed it up.

SEN. PATRICK LEAHY, D-Vt., Judiciary Committee chairman: Solicitor General Kagan will be confirmed.

KWAME HOLMAN: Indeed, Kagan managed to sidestep Republican challenges on key issues and Democratic invitations to criticize the current court, that despite pleas from senators on both sides, such as Republican Jeff Sessions of Alabama, to be more expansive on her views.

SEN. JEFF SESSIONS, R-Ala.: Some of the critics who are saying, “Who is this nominee? Exactly what do you believe?” might find it from the — from the testimony difficult to know if — if, Ms. Kagan, whether you’d be more like John Roberts and more like Ruth Bader Ginsburg.

So I think we need to know a little bit more what we can expect of you as a judge.

KWAME HOLMAN: Rhode Island Democrat Sheldon Whitehouse tried to get at that point, asking about high-profile split decisions driven by conservative justices.

SEN. SHELDON WHITEHOUSE, D-R.I.: I guess I want to ask you what you think about all these 5-4 decisions and what effort the court should make to return to a collegial environment that the court, where even these highly contentious decisions, like Brown versus Board of Education and Roe versus Wade are driven either by unanimous or massive majorities of the court rather than the slenderest possible majority and to try to reach across the partisan divide on the court so it’s not just Republican appointees acting together.

ELENA KAGAN, Supreme Court nominee: Senator Whitehouse, it’s a hard question you pose, because on the — on the one hand, every judge, every justice has to do what he or she thinks is right on the law. You wouldn’t want the judicial process to become in any way a bargaining process or a logrolling process.

SEN. SHELDON WHITEHOUSE: But, by definition, if the court were to reach beyond the group of five that has driven so many of these recent decisions, they would be less able to move the law as dramatically as they have. That’s just obvious, is it not?

ELENA KAGAN: Senator, what has — I want to make it clear that I’m not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do, and…

SEN. SHELDON WHITEHOUSE: I understand that.

ELENA KAGAN: And I’m sure that everybody up there is acting in good faith.

KWAME HOLMAN: But Democrats’ criticism of the current court was a theme that persisted. Delaware’s Ted Kaufman singled out this year’s decision that wiped away limits on corporate and labor union spending in campaigns for president and Congress.

SEN. TED KAUFMAN, D-Del.: I mean, we have these issues, like results-oriented judging, precedent, stare decisis, where everybody seems — everybody on the committee seems to agree. It’s kind of remarkable how when we look at individual cases they aren’t taken into account. And I’m not going to ask you to comment on that.

KWAME HOLMAN: And along those same lines, Minnesota Democrat Al Franken sought Kagan’s views on giving deference to Congress.

SEN. AL FRANKEN, D-Minn.: General Kagan, we spend a he lot of time in hearings and on the floor debating legislation. How much weight do you think a judge should give to the deliberations of Congress and the reasons why we passed a law in the first place?

ELENA KAGAN: Well, Senator Franken, the most important thing in interpreting any statute — in fact, the only thing that matters in interpreting any statute — is Congress’ intent. Congress gets to make the laws under Article One of the Constitution. And what the court should be doing in applying those laws is trying to figure out what Congress meant and how Congress wanted the laws to be applied. And that is the only thing that the court should be doing.

KWAME HOLMAN: The long first round of questioning finally wrapped up by late morning. Then it began again, with each senator getting another go at the nominee.

When his turn came again, Utah Republican Orrin Hatch returned to the campaign finance case known as Citizens United.

SEN. ORRIN HATCH, R-Utah: Of the cases usually cited in Democratic critiques of the court, this is the only one in which the court actually struck down an act of Congress. It did so for a simple reason: The law passed by Congress violated fundamental law, the First Amendment of the United States of America.

KWAME HOLMAN: Republican Lindsey Graham of South Carolina noted that both conservatives and liberals complain about judicial activism.

SEN. LINDSEY GRAHAM, R-S.C.: An activist judge is something none of us like, apparently. Nobody on that side likes it. Nobody on our side likes it. Help me find one.

ELENA KAGAN: I’m sorry?

SEN. LINDSEY GRAHAM: Help me find one. Can you think of anybody in the history of the United States that was an activist judge? Because we don’t like these people, we just — it seems to be an activist judge is somebody that rules the way we don’t like. And it’s getting to be no more sophisticated than that. I would like it to be more sophisticated than that.

So what is your definition of an activist judge?

ELENA KAGAN: Well, Senator Graham, I think my definition is somebody who doesn’t take three principles to heart.

The first principle is deference to the political branches in making the policy decisions of this nation because that’s who ought to be making the policy decisions of this nation.

The second principle is respect for precedent, precedent as a doctrine of constraint and humility, and also stability in the law.

And the third principle is deciding cases narrowly, deciding them one at a time, deciding them on narrow grounds, if one can, avoiding constitutional questions, if one can.

KWAME HOLMAN: Kagan also denied Graham’s assertion that, as an aide to President Clinton, she tried to allow the broadest possible practice of so-called partial-birth abortions.

In the end, Kagan, like other recent high court nominees, left some senators wanting much more. Pennsylvania Democrat Arlen Specter suggested lawmakers may some day have to threaten to block a nomination.

SEN. ARLEN SPECTER, D-Pa.: It would be my hope that we could find someplace between voting no and having some sort of substantive answers. But I don’t know that it would be useful to pursue these questions any further.

KWAME HOLMAN: The committee hopes to finish the nomination this week, but it will have to work around funeral plans for the late Senator Robert Byrd.