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Kagan vows to be unbiased, deferential to Congress

WASHINGTON (AP) - Supreme Court nominee Elena Kagan pledged at
her Senate confirmation hearing Monday to show the "evenhandedness
and impartiality" the Constitution demands if she is confirmed,
and to offer proper deference to Congress and the laws it makes.
The court must ensure that "our government never oversteps its
proper bounds or violates the rights of individuals," she said
before a rapt Judiciary Committee and a nationwide television
audience on the opening day of her hearing. "But the court must
also recognize the limits on itself and respect the choices made by
the American people."
The 50-year-old solicitor general and former Harvard Law School
dean appeared on track for confirmation before the high court opens
a new term in October as she delivered a brief statement at the end
of a day of senatorial speechmaking.
Kagan stopped by the Oval Office of the White House to receive
best wishes from President Barack Obama on her way to the hearing.
A few moments and little more than a mile distant, she strode with
a smile into the committee room and took her place at the witness
table - where senatorial ritual then required her to sit for hours
while lawmakers delivered prepared speeches from an elevated dais
across the room.
Finally, at mid-afternoon, it was her turn. "I will listen
hard, to every party before the court and to each of my colleagues.
I will work hard. And I will do my best to consider every case
impartially, modestly, with commitment to principle and in
accordance with law," she said.
Kagan faces hours of questioning, both friendly and otherwise,
when the panel meets on Tuesday, a grilling that she has spent
hours preparing for under the tutelage of White House advisers.
Already the political fault lines were well-drawn.
"I believe the fair-minded people will find her philosophy well
within the legal mainstream," said Sen. Patrick Leahy, D-Vt., the
panel's chairman. "I welcome questions but urge senators on both
sides to be fair. No one should presume that this intelligent woman
who has excelled during every part of her varied and distinguished
career, lacks independence."
But the committee's senior Republican signaled that Kagan can
expect tough questioning. "It's not a coronation but a
confirmation process," said Sen. Jeff Sessions of Alabama. He said
she had "less real legal experience of any nominee in at least 50
years." And he said her decision to bar military recruiters from
Harvard Law School's career services office was in violation of the
law - a legal conclusion disputed by the White House.
Leahy and Sessions both said they hoped Kagan would answer
questions candidly, although the chairman also cautioned, "No
senator should seek to impose an ideological litmus test to secure
promises of specific outcomes in cases coming before the Supreme
Court."
Judging by recent confirmation history, there was little chance
that Kagan would run afoul of that admonition. In the past quarter
century, most nominees have pledged fealty to the Constitution and
legal precedent - and little else - in their efforts to win
approval.
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 several 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.
Kagan's opening statement touched on her parents' growing up in
immigrant communities. She also praised Stevens, expressed a debt
of gratitude to Justices Sandra Day O'Connor and Ruth Bader
Ginsburg for living "pioneering lives" and described the current
members of the court in glowing terms.
She also recalled a clerkship nearly a quarter-century ago for
Justice Thurgood Marshall, who she said viewed the court as the
part of government most open to everyone.
"The idea is engraved on the very face of the Supreme Court
building: Equal Justice Under Law," she said. "What this commands
of judges is evenhandedness and impartiality. What it promises is
nothing less than a fair shake for every American."
One Republican on the committee, Sen. Lindsey Graham of South
Carolina, said he could say with certainty that Kagan's nomination
wouldn't change the balance of power on the court. But in a
reference to Obama, he added, "I hope people will understand that
elections do matter."
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. By the time Kagan spoke, at mid-afternoon, the
lined had dwindled considerably - scarcely a half-dozen would-be
spectators were waiting for a chance to view the proceedings.
"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 her remarks, but did not
elaborate on that point or on her statement that she would accord
proper deference to Congress if confirmed.
Numerous Democrats complained that under Chief Justice John
Roberts the court has strayed far beyond what Congress intended
when it wrote laws regarding campaign finance, workplace rights and
other issues. Conservatives on the court "can be and are very
activist judges," Leahy told reporters after gaveling the day's
session to a close.
In a similar vein, Republicans argue that Obama is determined to
turn the court in a more liberal direction.
Several Republicans expressed concerns Kagan would become a
judicial activist along the lines of Marshall. Confirmed in 1967 as
the first black justice in history, he was a civil rights lawyer
best known in his earlier career for successfully arguing the case
in which the Supreme Court ruled that segregation of public schools
along racial lines was unconstitutional. As a young lawyer, Kagan
was one of his clerks at the high court.
Earlier in the day, 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.
Sessions said he hoped there wouldn't be a filibuster, but said
he was concerned that Kagan may be "outside the mainstream" of
legal thinking. He said Republicans have serious questions to
resolve, including whether she would be too driven by her political
views if she were to take a place on the high court.
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.
One of the issues Republicans have already focused on was her
decision, while at Harvard, to bar 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, a different
interpretation from Sessions' statement that she had violated the
law.
Kagan's swearing-in would mark the first time three women would
be on the court at the same time. Justices Ruth Bader Ginsburg and
Sotomayor are the other two.
--
Online:
Senate Judiciary Committee: http://judiciary.senate.gov/

(Copyright 2010 by The Associated Press. All Rights Reserved.)


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