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Kagan closes questioning on high note

Thu., July 1, 2010, midnight

Supreme Court nominee Elena Kagan testifies June 30 before the Senate Judiciary Committee.  (Associated Press / Associated Press)
Supreme Court nominee Elena Kagan testifies June 30 before the Senate Judiciary Committee. (Associated Press / Associated Press)

WASHINGTON – Cruising toward almost certain confirmation, Supreme Court nominee Elena Kagan completed grueling Senate questioning Wednesday, unscathed by Republican challenges on abortion, gays in the military and gun rights while sidestepping partisan debate about GOP-named judges pulling the court to the right.

Kagan emerged from three days of vetting by the Senate Judiciary Committee much as she had begun, declaring she’d be an independent and impartial judge and denying Republican suggestions that she would be unable to separate her political leanings from her job as a justice.

Democrats said President Barack Obama’s nominee to succeed retiring Justice John Paul Stevens was on track to become the fourth woman in Supreme Court history.

“Solicitor General Kagan will be confirmed,” declared Sen. Patrick Leahy, D-Vt., the panel chairman.

Republicans, despairing of their inability to get Kagan to reveal her legal views or say anything that might threaten her confirmation over more than 15 hours of questioning, acknowledged as much.

“I assume she will be,” said Sen. John Cornyn, R-Texas.

Kagan, prompted by Democratic supporters on the panel, gave a blunt denunciation of “results-oriented judging,” deciding cases based on preconceived conclusions, but she refused to join them in applying the criticism to the current court under conservative Chief Justice John Roberts. “I’m sure that everybody up there is acting in good faith,” she said.

Sen. Jeff Sessions of Alabama, the top Republican on the panel, said the combination of some of Kagan’s careful answers and her record “leaves me uneasy” about her confirmation.

Kagan, more expansive and animated during her third and final day in the witness chair for nationally televised hearings, relaxed enough to banter with senators about the sometimes-tedious proceedings and her expectations of being confirmed.

Overall, she said of the hearings as they drew to a close, “I found it somewhat wearying but actually a great moment in my life.”

On one controversial matter, Kagan defended her efforts as a Clinton domestic policy aide to scale back a GOP-proposed ban on a procedure opponents call partial-birth abortion – something she called “an incredibly difficult issue.”

The former president, she said, “thought that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman.”

Sen. Orrin Hatch, R-Utah, pressed Kagan about a note she wrote saying it would be “a disaster” if the American College of Obstetricians and Gynecologists issued a statement saying there was no case in which the procedure was necessary, and about her intervention to prevent the group from doing so.

She responded that the disaster would have been if the organization’s statement didn’t reflect its full view that in some instances, the procedure was “medically best.”

“This was all done in order to present … both to the president and to Congress the most accurate understanding of what this important organization of doctors believed,” Kagan said.

Later, responding to Sen. Lindsey Graham, R-S.C., Kagan denied that she had tried to allow the broadest possible practice of the procedure, in line with her own views on abortion.

“It’s not true. I had no agenda with respect to this issue,” Kagan said.

Questioned by Sen. Tom Coburn, R-Okla., on guns, Kagan said she accepts a recent ruling upholding individuals’ rights to possess firearms, but she would not say whether she believed there was a “fundamental right” – meaning one that applies to states as well as the federal government – to bear arms.

Democrats used their time with Kagan largely to criticize a recent string of 5-4 decisions by the court, especially its January ruling that struck down long-standing precedent to say corporations and labor unions were free to spend their own money on political activity.

Sen. Sheldon Whitehouse, D-R.I., said justices named by Republican presidents were “driving the law in a different direction by the narrowest possible margin.”

“I want to make it clear that I’m not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do,” Kagan said. But she added that she believes the court should seek to make less far-reaching decisions to engender more consensus, which she called “a very good thing for the judicial process and for the country.”



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