- The Washington Times - Monday, June 28, 2010

Supreme Court nominee Elena Kagan on Monday appeared before the Senate Judiciary Committee for the first of several scheduled days of testimony, as Democrats called her an independent moderate while Republicans portrayed her as liberal ideologue.

“Elena Kagan earned her place at the top of the legal profession. Her legal qualifications are unassailable,” said committee Chairman Patrick J. Leahy, Vermont Democrat.

Miss Kagan is the first woman to hold the post of U.S. Solicitor General, the federal government’s top litigator before the Supreme Court. She also was the first woman to serve as dean of Harvard Law School and served as an advisor in the former Clinton administration.

Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, expressed uneasiness that Ms. Kagan never has tried a case before a jury and only argued her first appellate case a few months ago.

“While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years,” he said.

Democrats downplayed her lack of judicial experience, saying that about a third of all justices had no prior judicial experience, including former Chief Justice William Rehnquist, first named to the court by President Richard M. Nixon.

“Frankly, I find this refreshing,” said Sen. Dianne Feinstein, California Democrat.

Sen. Charles E. Schumer, New York Democrat, said Miss Kagan was the “right person for the right time.”

“What [Miss Kagan] does bring to the table is unprecedented practical experience,” he said.

Sen. Orrin G. Hatch, Utah Republican, said he wasn’t bothered that  the nominee had not served as a judge. But he said that unlike other Supreme Court judges without bench experience, Miss Kagan has little private law practice experience, having instead spent most of her career in academia and politics.

“The value of such experience depends on whether you view the Supreme Court as a political circus or view its role as crafting policy,” Mr. Hatch said.

Republicans also raised concerns that Miss Kagan, while head of the Harvard Law School, prohibited military recruiters in protest over the Pentagon’s policies on gays.

“I can’t take this issue lightly,” Mr. Sessions said.

Miss Kagan, 50 is expected to address some concerns expressed by lawmakers of both parties in the run-up to her confirmation on the high court’s proper role in the constitutional system.

“The Supreme Court, of course, 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,” according to excerpts of her statement released in advance by the White House.

Many Republican and Democratic lawmakers opened their statements at Monday’s hearing by noting the passing earlier that morning of Sen. Robert C. Byrd, West Virginia Democrat, after more than a half-century of service in the Senate.

“All of us are saddened by his death,” said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat. He called Mr. Byrd the chamber’s “fiercest defender of the Senate’s constitutional role and prerogatives.”

David R. Sands contributed to this report.

• Sean Lengell can be reached at slengell@washingtontimes.com.

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