WASHINGTON – Elena Kagan promised to be a model of impartiality and restraint as a Supreme Court justice as the Senate opened confirmation hearings Monday.
Breaking weeks of public silence since President Barack Obama nominated her to be the fourth woman in the court’s history, Kagan called the Supreme Court “a wondrous institution” but one with limited powers under the Constitution. She billed herself as a consensus-builder for the ideologically polarized court and said she’d strive to emulate retiring Justice John Paul Stevens – the man she’s been chosen to succeed – by “listening to each party with a mind as open as his … to render impartial justice.”
The 50-year-old solicitor general and former Harvard Law School dean appeared on track for confirmation before the court opens a new term in October as she delivered her brief statement at the end of a day of senatorial speechmaking in a hearing room on Capitol Hill. However, the deep partisan divide over the court – and Kagan’s fitness to serve there – was evident.
Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, called Kagan’s views “well within the legal mainstream.”
Sen. Jeff Sessions of Alabama, the panel’s top Republican, said her “career has been consumed more by politics than law.”
Kagan said her career has taught her about the importance of a modest court and open-mindedness when dealing with opposing views.
The Supreme Court “has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people,” Kagan said. “I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.”
Her remarks seemed designed to blunt conservatives’ argument that she would bend the law to suit her own agenda – and also to reassure liberals that she would be a counterweight to what they characterize as a pro-business, conservative-dominated court that has done just that in recent years.
Republicans and Democrats alike used the hearing to rail against “judicial activism.” The GOP, seeking to tap into tea party disgust with a federal government many members say has overstepped its bounds, has portrayed Kagan as a prime example of what they charge is Obama’s desire to populate the court with liberals willing to stretch the law to achieve preferred policy outcomes.
“Too often, it sounds to me like Ms. Kagan shares the view of President Obama and (former) Justice (Thurgood) Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants,” said Sen. Jon Kyl, R-Ariz. “The burden is on the nominee to show that her record demonstrates she can be a fair and impartial justice rather than one who would have an outcome-based approach.”
Democrats countered that it was the current, conservative-dominated Supreme Court under Chief Justice John Roberts that has overreached, reversing precedents and ignoring the intent of Congress in rulings on issues from campaign finance to workplace rights.
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