Kagan takes pledge of impartiality as Senate confirmation hearings begin

Solicitor General Elena Kagan on Monday pledged to work hard, remain
impartial and show restraint if confirmed by the Senate as the fourth
female Supreme Court Justice in history.

“I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with the law,” she said in opening remarks on the first day of the Senate Judiciary Committee confirmation hearing.

{mosads}Kagan quickly referred to lessons she learned during her time as dean of Harvard Law School, clerking for Justice Thurgood Marshall and throughout her tenure as solicitor general.

The remarks were free of any charged words that would signal political leanings, a cautious approach but one that may disappoint liberal activists looking for clues to how she would interpret the law.

Instead, Kagan, clad in a brilliant royal-blue blazer, black skirt and pearls, stressed the successes she’s had as a consensus-builder. As dean of Harvard Law, for instance, she was known for hiring conservative professors as well as liberals.

“I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide,” she said. “I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind.”

Kagan also wove into her remarks references to her Russian Jewish immigrant parents, and the work ethic they instilled by leading by example.

“My parents lived the American dream,” she said. “And they taught me and my two brothers, both high school teachers, that this is the greatest of all countries, because of the freedoms and opportunities it offers to people.”

Kagan extolled the Supreme Court as a “modest” institution that should be “properly deferential” to Congress and emphasized the need for justices to show restraint so the court’s role in government will remain limited.

Before the hearing began, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) ushered Kagan to a table where she sat alone. Sen. Dianne Feinstein (D-Calif.) gave her a friendly wave as she waited for the hearing to begin. Behind Kagan sat a cheering section of family members, including her brother, Irving Kagan, and dozens of former students from Harvard.

Kagan spoke last, after every one of the committee’s 19 members — 12 Democrats and seven Republicans — delivered their opening statements. The senators’ first-day monologues lacked the fireworks of real-time questioning, but served as a rough gauge of the type of grilling Kagan will face the rest of the week.

Several Republicans came out swinging early, promising respectful but vigorous questioning during the duration of the hearing.

Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, as well as Sen. Orrin Hatch (R-Utah), warned of a tough grilling session from Republicans throughout the week focused mainly on what they considered her lack of “real legal experience” and years spent in policy and politics.

“It is not a coronation, but a confirmation,” Sessions told a packed hearing room.

Sessions quickly criticized the short time Kagan has spent practicing law, the fact that she has never tried a case before a jury nor served as a judge, her master’s thesis on socialism in New York, her time spent in the Clinton White House and her decision to reverse Harvard’s existing policy and kick the military out of the recruiting office.

“This all sounds a lot like the progressive philosophy, which became fashionable among elite intellectuals a century ago — and which is now seeing a revival,” Sessions said. “They saw the Constitution as an outdated impediment to their expansive vision for a new social and political order in America.”

Hatch offered more nuanced comments. He said he has never considered the lack of judicial experience to be an automatic disqualifier for a nominee, noting that approximately one-third of the 111 men and women who have served on the high court had no previous judicial experience. His concerns, he said, center on Kagan’s lack of private legal experience and her stint as a Clinton White House lawyer, which he said brings experience “in the political circus that often defines Washington.”

“One of my Democratic colleagues on this committee recently said that Ms. Kagan’s strongest qualifications for the Supreme Court are her experience crafting policy and her ability to build consensus,” he said. “The value of such experience depends on whether you view the Supreme Court as a political circus or view its role as crafting policy.”

Sen. Lindsey Graham (R-S.C.) was far warmer to Kagan and paid her several compliments for positions she’s taken over her career and during her time as solicitor general, specifically mentioning several decisions related to terrorism cases.

“You hired some conservatives [at Harvard], which is a good thing. And you opposed military recruitment, which I thought was inappropriate,” Graham said. “It’s a good example of what you bring to this hearing. It’s a little of this and little of that.”

Republicans have tried to portray Kagan as a political pick with little real legal experience and someone who would serve as an “activist” judge, a term both sides then tried to define in their favor.

Sen. Dick Durbin (D-Ill.) responded to GOP attacks on Justice Marshall as a judicial activist, hailing Marshall’s “tenacity, integrity and values.”

“Let’s talk about Brown v. Board of Education,” he said. “If that is an activist mind at work, then we should be grateful as a nation for it.”

Leahy aggressively defended Kagan’s experience and record and noted that her confirmation would make her the fourth woman to serve on the Supreme Court, which he called a high-water mark in the Supreme Court’s history.

“I believe that fair-minded people will find her judicial philosophy well within the legal mainstream,” Leahy said.

“I welcome questions to Solicitor General Kagan about judicial independence, but let us be fair. Let us listen to her answers. There is no basis to question her integrity, and no one should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career, lacks independence.”