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Question time

Supreme Court | Elena Kagan works to debunk certain criticisms, while keeping mum on how she would rule as a justice

WASHINGTON-Under a full day of questioning from the Senate Judiciary Committee, Supreme Court nominee Elena Kagan projected confidence and eschewed controversy.

Only 16 months ago, Kagan was in the same seat, at a confirmation hearing to become the U.S. Solicitor General, so she was at ease with senators, eliciting frequent laughter.

Sen. Lindsey Graham, R-S.C., recognizing that Republicans have little sway in preventing her confirmation, stated, "Elections have consequences. Do you agree with that?"

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"It would be hard to disagree that elections have consequences," she said with a smile.

The light-hearted back-and-forths continued. Sen. Orrin Hatch, R-Utah, said, as he jousted with Kagan, that he was trying to keep the hearing from being "boring." When Graham asked her where she was on Christmas Day, she assumed he was referring to the attempted terrorist attack-but he quipped: "I just asked where you were at on Christmas."

"Like all Jews, I was probably at a Chinese restaurant," she shot back, drawing a roomful of laughter.

She also knew what questions not to answer.

"It would be inappropriate for a nominee to talk about how she would rule on cases," Kagan said at one point when a senator posed a speculative question. Nor would she talk about past cases. "My approach in the hearings is not to grade cases," Kagan said. Another senator asked if she thought the current court was too activist, and Kagan replied, "I would not want to characterize the current court in any way. I hope one day to join it."

Still-since she has no background as a judge, Republicans and Democrats had a litany of questions about how Kagan might serve as a justice.

Republicans and Democrats questioned her about her decision as Harvard Law School dean to bar military recruiters from the school's career services office.

"Military recruiters had access to Harvard students every single day I was dean," Kagan said. She commented that she has "only cried once" during the Supreme Court nomination process-when she read an op-ed by Marine Capt. Robert Merrill, a former Harvard Law student, defending her respect for the military.

Republicans also questioned Kagan's political background, since she worked in the Clinton White House. "I've been a Democrat all my life. My political views are generally progressive," Kagan said, adding, "I know that my politics would be, have to be, must be separate from my judging." Pushed on whether she agreed with President Obama's "empathy" standard for judges, Kagan said: "It's law all the way down."

She also responded to Republicans' assertion that she would be a liberal activist because she clerked for Supreme Court Justice Thurgood Marshall. "I love Justice Marshall," Kagan said. "But if you confirm me to this position, you'll get Justice Kagan, you won't get Justice Marshall."

Kagan also fielded criticism about her glowing remarks introducing Israeli Supreme Court Judge Aharon Barak, an activist judge, at Harvard Law School: "Nothing that I said about Judge Barak in any way suggests that his ideas . . . should be transplanted to the United States." Gesturing to the senators before her, she added, "If any of you come to Harvard Law School, I would have given you a great introduction too."

Kagan did touch on the abortion issue, saying that, according to current court rulings, "Women's life and women's health have to be protected in abortion regulation." But her first day of answers showed the current state of Supreme Court confirmation hearings: Senators can ask, but the nominee won't tell much.

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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