- The Washington Times - Wednesday, June 30, 2010

Treading carefully, Supreme Court nominee Elena Kagan on Wednesday declined an invitation from Senate Democrats to portray the current high court as partisan, rejecting concerns that a recent spate of 5-4 decisions has eroded important legal precedents.

Democrats on the Senate Judiciary Committee at times appeared to be using Ms. Kagan’s confirmation hearings to get in some digs at the high court, but Ms. Kagan refused to go along.

“I’m sure that everybody up there is acting in good faith,” she said at one point.

Ms. Kagan wrapped up three lengthy days of statements and testimony before the Senate Judiciary Committee, and barring an unexpected problem, President Obama’s second Supreme Court selection appeared on track to earn confirmation from the panel and approval by the full Senate.

Sen. Sheldon Whitehouse, Rhode Island Democrat, asked Ms. Kagan at one point whether the conservative-leaning court majority led by Chief Justice John G. Roberts Jr. should try to craft more moderate decisions that could attract a bigger majority on the court.

“If the court were to reach beyond the group of five that has driven so many of these recent decisions, they would be less able to move the law as dramatically as they have,” Mr. Whitehouse said.

Ms. Kagan, 50, the Obama administration’s solicitor general, answered that she didn’t agree with the senator’s characterizations of the current court.

“I think that that would be inappropriate for me to do,” Ms. Kagan said.

Ms. Kagan even added that narrow decisions can benefit the court because they “enable consensus.”

“And consensus is, in general, a very good thing for the judicial process and for the country,” she said.

Other Democrats, including Sen. Al Franken of Minnesota, also criticized recent court rulings. The senators generally didn’t ask the nominee for her opinion on the matter, and she didn’t volunteer one.

By contrast, Republicans pressed Ms. Kagan again Wednesday on a number of thorny legal questions and social issues.

Ms. Kagan defended her actions as an adviser with the Clinton administration during its efforts to scale back a Republican proposal to ban so-called “partial-birth” abortions.

Sen. Orrin G. Hatch, Utah Republican, referred to a note Ms. Kagan wrote at the time contending it would be a “disaster” if an expert panel of the American College of Obstetricians and Gynecologists issued a statement saying it found no circumstances under which partial-birth abortion was the only option for saving the life or preserving the health of the mother.

Ms. Kagan responded that she was critical of the language because she said it wouldn’t represent the association’s full position that, in some circumstances, the procedure was the “medically best” option.

Republicans on the panel expressed some frustration that the nominee refused to offer more insights about her own opinions on a number of major issues. Sen. Jeff Sessions of Alabama, the committee’s top Republican, accused her of not being forthcoming in her answers.

“Critics who are saying, ‘Who is this nominee? Exactly what do you believe?’ might find it from the testimony difficult to know if, Ms. Kagan, you’d be more like John Roberts or more like [Justice] Ruth Bader Ginsburg?” he said.

During a break in the hearing, several Republicans told reporters that they thought Ms. Kagan was deliberately sidestepping questions.

“I think she’s been very adept at avoiding very specific questions that could result in criticism of her point of view,” said Sen. Jon Kyl, Arizona Republican. “That doesn’t help her confirmation, in my view.”

Their criticism was echoed by at least one frustrated Democrat, Sen. Arlen Specter of Pennsylvania, who hinted he might even consider opposing the nominee if she was not more open on specific issues.

“It would be my hope that we could find someplace between voting ‘no’ and having some sort of substantive answers,” he said.

But Sen. John Cornyn, Texas Republican, when asked whether he thought Ms. Kagan would be confirmed, said; “I assume she will be.”

Committee Chairman Patrick J. Leahy, Vermont Democrat, agreed, saying during a break that “Solicitor General Kagan will be confirmed.”

The Judiciary Committee hopes to vote on her nomination in July, with a full Senate vote before Congress leaves for its August break. If confirmed, she would replace retiring Justice John Paul Stevens, who was nominated by Republican President Gerald Ford.

If confirmed Ms. Kagan would be the third woman on the high court and the fourth in its history.

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

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