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Supreme confidence

With a solidly Democratic Senate, Elena Kagan was at ease in her confirmation hearings

Issue: "Tilting at turbines," July 17, 2010

Supreme Court nominee Elena Kagan projected confidence and eschewed controversy throughout her confirmation hearings in the Senate Judiciary Committee. 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 the obvious: "Elections have consequences. Do you agree with that?"

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

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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.

The lighthearted back-and-forths continued. Sen. Orrin Hatch, R-Utah, as he jousted with Kagan, said he was trying to keep things from being "boring." President Reagan's Supreme Court nominee Robert Bork-whose confirmation failed in the Senate-criticized Republicans for essentially giving Kagan a pass.

But Kagan was careful, and knew what questions not to answer. "It would be inappropriate for a nominee to talk about how she would rule on cases," she 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," she said. Another senator asked if she thought the current court was too activist, and she responded: "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 she might serve as a justice. Both sides questioned her decision as Harvard Law 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," she said.

Kagan's opponents outside the Senate said that was not the point. Elaine Donnelly, president of the Center for Military Readiness, said that the military may have had access to students but denying the military access to the career services office amounted to second-class treatment: "Kagan's 'separate but equal' policy for military recruiters was motivated not by principle, but by the desire for federal funds for Harvard University."

Republicans also questioned her political background, since she worked in the Clinton White House. She remarked, "I've been a Democrat all my life. My political views are generally progressive," but also said, "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, she said: "It's law all the way down."

She also fielded criticism about her 2006 remarks at Harvard in introducing Israeli Supreme Court Judge Aharon Barak, one of the world's leading advocates of judicial activism and of citing foreign law in judicial decisions. In her introduction, she called Barak her "judicial hero" and "the judge who has best advanced democracy, human rights, the rule of law, and justice."

"Nothing that I said about Judge Barak in any way suggests that his ideas ... should be transplanted to the United States," she told the senators. She added, gesturing to the senators before her, "If any of you came to Harvard Law School, I would have given you a great introduction too."

She did touch on abortion, defending her work on partial-birth abortion during the Clinton administration and saying that, according to current court rulings, "Women's life and women's health have to be protected in abortion regulation." Overall, her 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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