Kagan Pledges Deference to Congress

WASHINGTON — Supreme Court nominee Elena Kagan pledged Monday to be properly deferential to Congress if confirmed as a justice and to strive to "consider every case impartially, modestly, with commitment to principle and in accordance with law."
In advance excerpts of her opening statement before the Senate Judiciary Committee, Kagan said the court is responsible for making sure the government does not violate the rights of individuals. "But the court must also recognize the limits on itself and respect the choices made by the American people," she said.
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As the opening gavel fell on her nationally televised hearings, the 50-year-old Obama administration official and former Harvard Law School dean appeared on track for confirmation, the result of a Democratic majority on the Judiciary Committee and in the Senate as a whole.
In excerpts of his own, the committee's chairman, Sen. Patrick Leahy, D-Vt., noted that if confirmed, Kagan would be the fourth woman to take a seat on the high court. She is also President Barack Obama's second nomination to don the robes of a justice, following his selection last year of Sonia Sotomayor.
"No senator should seek to impose an ideological litmus test to secure promises of specific outcomes in cases coming before the Supreme Court," Leahy said.
Judging by recent confirmation history, there was little chance that Kagan would run afoul of that admonition. In the past quarter century, most nominees to the Supreme Court have pledged fealty to the Constitution and legal precedent — and little else — in their efforts to win confirmation.
Obama nominated Kagan to succeed retiring Justice John Paul Stevens, a frequent dissenter in a string of 5-4 rulings handed down by a conservative majority under Chief Justice John Roberts.
Strikingly, there were two such rulings in the hours before the hearing opened. In one, the court struck down part of an anti-fraud law enacted in 2002 in response to scandals involving Enron and other corporations.
In another, a 5-4 majority said the right to bear arms can't be limited by state or local laws any more than by federal legislation.
A handful of protesters gathered outside the Senate Hart Office Building across the street from the Capitol, some opposing Kagan's nomination, others expressing unhappiness that Republicans haven't done more to block it.
By midmorning about 200 people had claimed tickets for seats in the hearing room, the first ones arriving as early as 6:30 to line up in the heat.
"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," Kagan said in the excerpts released in advance.
With allies arguing she can be a consensus-builder on the ideologically polarized court, Kagan says her time at Harvard taught her the importance of open-mindedness across apparent political and ideological divides.
Democrats have more than enough votes to confirm her, and Republicans have shown no inclination to try to block such a vote, although some conservative interest groups are urging them to do so.
Leahy predicted that Kagan would be cleared with votes to spare. He brushed off GOP questions about her lack of judicial experience, saying there had been many successful justices who had no previous bench time. He cited Earl Warren, Hugo Black and Robert Jackson.
Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, said he hopes there won't be a filibuster, but said he's concerned that Kagan may be "outside the mainstream" of legal thinking.
Sessions said Republicans have serious questions to resolve about Kagan, including whether she would be too driven by her political views if she were to take a place on the high court bench.
The GOP was set to grill Kagan on controversial issues from guns to abortion to campaign finance, arguing that she'd bring liberal politics and an antimilitary bias to the job of a justice.
"She'll have to convince me that all of this liberalism that she's lived with all her life can be put in a proper place and when she gets to be a judge she'll be left of center but within the mainstream of judging," Sen. Lindsey Graham, R-S.C., said on "Fox News Sunday."
For the second summer in a row, a woman chosen by Obama was appearing for televised hearings in a cavernous room on Capitol Hill, where the questioning by senators is seldom polite but nominees rarely if ever go off-script.
Kagan's swearing-in would mark the first time three women were on the court at the same time.
The White House and Senate Democrats are painting Kagan, the first woman to be dean of Harvard Law School or to hold the job of solicitor general, as a pioneering figure and brilliant legal mind who can build consensus on the polarized court.
Later this week, they'll call conservatives, including two who served in the administration of George W. Bush — Harvard Law School professor Jack Goldsmith and former Solicitor General Greg Garre — in a bid to dispel GOP charges that she's a liberal rubber-stamp for Obama.
The GOP has worked to brand her a liberal extremist who betrayed the nation during wartime, and plans to try to bolster its case by spotlighting Kagan's dispute with the Pentagon over military recruiting at Harvard and the policy against openly gay soldiers. Its witnesses later this week include three veterans.
While at Harvard, Kagan barred recruiters from the career services office because the military's policy on homosexuality violated the school's nondiscrimination rules. She was also strongly critical of the "don't ask, don't tell" policy.
The Pentagon said Kagan's stance made Harvard ineligible for federal funding under a law that required schools to give military recruiters the same access as other employers.
Obama, while not present at the hearings, will nonetheless be a key theme for Republicans, who regard Kagan's nomination as a symptom of what they characterize as the president's attempts to remake the judiciary with judges who are willing to twist the law to achieve their agendas.
"President Obama wants justices who indulge their own policy preferences. There's every reason to believe that he's found that with Elena Kagan," said Ed Whelan of the conservative Ethics and Public Policy Center.
The fact that Republicans lack the votes to defeat Kagan's nomination "doesn't make the hearing unimportant," Whelan said. "This is an opportunity for Republicans and critics of the administration and of Elena Kagan to make clear to the American people what this administration is doing."
The White House has carefully choreographed Kagan's confirmation process, and knows that much of the public is just now learning who she is.
Presidential adviser David Axelrod joked with reporters Friday about the extraordinary string of major developments — the abrupt dismissal of Gen. Stanley McChrystal and the Gulf oil spill chief among them — occupying Obama's attention in recent weeks, all of which have helped push Kagan off the front pages and out of the public eye.
"Because things have been rather dull in Washington, we've scheduled these Supreme Court hearings just to enliven the festivities," Axelrod quipped.