Kagan Vows to Hear Cases Impartially, Modestly

By Laura Litvan and Catherine Dodge -

Supreme Court nominee Elena Kagan listens to opening statements at her confirmation hearing in Washington on June 28, 2010. Photographer: Joshua Roberts/Bloomberg

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June 28 (Bloomberg) -- U.S. Senator Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, talks about the confirmation hearings for Elena Kagan's nomination to the U.S. Supreme Court. Leahy, speaking with Peter Cook on Bloomberg Television's "In the Loop With Betty Liu," also discusses the death of West Virginia Senator Robert Boyd and its implications for legislation to overhaul financial regulation. (Source: Bloomberg)

U.S. Supreme Court nominee Elena Kagan said she will do her best to “consider every case impartially, modestly,” as senators began confirmation hearings amid partisan disagreement over her qualifications.

The court’s motto of “equal justice under law” promises that the justices will provide “a fair shake for every American,” Kagan said in excerpts from the opening statement she will deliver later today to the Senate Judiciary Committee. The high court must be “properly deferential to the decisions of the American people and their elected representatives,” Kagan said.

The Democratic-controlled panel quickly established the battle lines over Kagan’s appointment by President Barack Obama, his second to the high court. Democrats said Kagan has had an outstanding and varied career; Republicans accused her of political activism and a lack of judicial experience.

Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, said Kagan’s “legal qualifications are unassailable,” and she has “excelled during every part” of her career. He said Americans will find Kagan’s views “well within the legal mainstream.”

‘Serious Concerns’

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said “there are serious concerns about this nomination.” Kagan has “less real legal experience” than any nominee in at least 50 years and has “barely practiced law,” he said.

Sessions and other Republicans on the panel said most of Kagan’s background is in policy and politics and that they will be looking for assurances the nominee won’t be a rubberstamp for a political agenda.

“The burden is on the nominee to show that her record demonstrates that she can be a fair and impartial justice rather than one who would have an outcome-based approach,” said SenatorJon Kyl, an Arizona Republican.

Kagan’s confirmation by the full Senate would place three women on the Supreme Court at once for the first time in its 221-year history. Kagan is solicitor general at the Justice Department, the Obama administration’s chief courtroom lawyer and the first woman in that position.

She is a heavy favorite to become the court’s 112th justice, with lawmakers predicting confirmation barring a major gaffe during this week’s hearings. Kagan will make her opening statement after the 12 Democrats and seven Republicans on the committee have an opportunity to speak.

Fourth Woman

Kagan, 50, would become the fourth woman to serve on the court. She has never been a judge and worked for four years in the White House when Democrat Bill Clinton was president.

Obama’s first high court nominee, Sonia Sotomayor, was confirmed last year 68-31, with nine Republicans supporting her.

The week-long hearings for Kagan take place months before the November midterm congressional elections. With both Republicans and Democrats predicting she will be confirmed, senators may use the televised forum to frame some of the issues in campaigns that will determine control of Congress and the sweep of Obama’s agenda.

“The Supreme Court nominations have become highly politicized,” said Wayne Steger, a political science professor at DePaul University in Chicago. “It’s the one area where the whole culture wars come out. We don’t see it anywhere near as much in any other issue.”

Democrats say Kagan, a former dean of Harvard Law School, would be a refreshing addition to a court made up entirely of justices who served on lower courts.

‘Eminently Confirmable’

“I believe that you are eminently confirmable,” said Dianne Feinstein, a California Democrat.

Democrats control 58 out of 99 votes in the Senate, which has one vacancy after today’s death of West Virginia Democrat Robert Byrd. Some Republicans, such as Lindsey Graham of South Carolina and Susan Collins of Maine, have said Kagan is qualified for the court. Senator Orrin Hatch, a Utah Republican, said last month she probably will be confirmed.

Kagan, a New York native, was approved by the Senate 61-31 to be solicitor general. If confirmed, she would replace retiring Justice John Paul Stevens. Kagan’s confirmation almost certainly wouldn’t affect the court’s ideological balance, which tilts 5-4 for conservatives on most of the divisive issues.

Republicans say Kagan can expect tough questions about recently released documents from her White House years. She served as an associate counsel to Clinton in 1995 and 1996 and a deputy assistant for domestic policy from 1997 to 1999.

‘Liberal Positions’

Senator Charles Grassley, an Iowa Republican, told Kagan those writings showed she “forcefully promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.”

Many of the records reflect an aide searching for pragmatic solutions for a Democratic president wrestling with a Republican-led Congress on issues such as a ban on a procedure opponents call partial-birth abortion.

Republicans will also focus on memos she wrote as a law clerk to former Justice Thurgood Marshall. In one 1987 memo, she urged Marshall to vote against hearing a Washington man’s appeal in a gun-control case. She said she was “not sympathetic” to his claim that his rights were violated when he was convicted for carrying an unlicensed pistol.

Sessions has challenged her decision as Harvard law school dean, a job she held from 2003 to 2009, to bar military recruiters from the campus in protest of the Pentagon’s ban on openly gay troops. Kagan backed a lawsuit seeking to overturn the withholding of federal funds from schools that blocked the recruiters.

Roberts Court

Democrats say they will use the hearings to examine the court’s record under Chief Justice John Roberts, who was appointed by Republican President George W. Bush.

Obama and the Democrats have criticized the court’s 5-4 ruling this year in Citizens United v. Federal Election Commission, which overturned limits on corporate election spending. Another target: a 2008 decision that cut a $2.5 billion punitive damage award against Exxon Mobil Corp. for the 1989 Valdez disaster to $507.5 million.

“Elena Kagan has great potential to moderate a court that is veering out of the mainstream,” said Senator Charles Schumer, a New York Democrat.