High court justices must both heed, apply Constitution, Kagan tells Senate confirmation panel

By Mark Sherman, AP
Tuesday, June 29, 2010

Kagan: Applying Constitution is justice’s job

WASHINGTON — Taking on the role of professor as well as Supreme Court nominee, Elena Kagan told senators Tuesday the job of a justice is to heed the Constitution where it is explicit and apply it to “new situations and new contexts” when it is more vague.

“Sometimes they laid down very specific rules, and sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do, and in that sense we are all originalists,” the former Harvard Law School dean said, referring to the framers of the Constitution.

She spoke in the opening moments of daylong questioning by the Senate Judiciary Committee, the panel that will vote first on her nomination to succeed retiring Justice John Paul Stevens.

Kagan said she stood by the “basic points” of a 1995 book review in which she argued that Supreme Court nominees should be more forthcoming with the Senate at their confirmation hearings. But she said she has since concluded she had tilted too far in the direction of disclosure.

“It wouldn’t be appropriate for me to talk about what I think about past cases, sort of grade cases, because those cases might again come before the court,” she said.

Barring an unexpected stumble, Kagan appears on course to take her seat on the high court before it convenes for a new term in October. Democrats have a substantial majority on the committee as well as in the Senate as a whole.

Like her predecessors in the confirmation committee’s witness chair, Kagan is the product of elite schools and has spent the bulk of her adult life at the highest levels of achievement. She has spent little time with the common man or woman, though she may empathize with them.

On Monday, she talked about her immigrant grandparents and said her mother spoke not a word of English until Kagan started school. She twice mentioned she was the head of a law school, but never said it was Harvard.

Kagan was the model of restraint in the choice of words and measured delivery of her opening statement, as if she wanted to convince Republican senators that her deliberate manner would reflect her approach to judging.

She even suggested that she welcomes tough questions, noting the “relentless” questioning she faced from the justices during her six arguments at the high court in the past year as U.S. solicitor general.

Democrats and Republicans on the Judiciary Committee promised Kagan she would get difficult queries in the coming days, though her confirmation seemingly is not in doubt.

“It’s not a coronation but a confirmation process,” said Sen. Jeff Sessions of Alabama, the top committee Republican.

The Republican lines of attack were well developed as the hearing began.

Sessions said Kagan had “less real legal experience of any nominee in at least 50 years.” 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.

Several Republicans also expressed concerns Kagan would become a judicial activist along the lines of Justice Thurgood Marshall, Kagan’s boss when she was a Supreme Court clerk in the late 1980s.

Democrats said they, too, would focus on judicial activism, but of the conservative variety. Several Democratic senators complained that Chief Justice John Roberts has broken his promise to observe judicial modesty.

They said the Roberts-led court has strayed far beyond what Congress intended when it wrote laws regarding campaign finance, workplace rights and other issues. Last year, Kagan argued in defense of campaign finance laws at the court.

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