Kagan sails through last day of questioning

Panelists call confirmation a fait accompli

‘‘As a judge you are on nobody’s team. As a judge, you are an independent actor,’’ Elena Kagan said. ‘‘As a judge you are on nobody’s team. As a judge, you are an independent actor,’’ Elena Kagan said.
By Mark Arsenault
Globe Staff / July 1, 2010

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WASHINGTON — Supreme Court nominee Elena Kagan emerged yesterday from her last day of Capitol Hill testimony on track to join the nation’s highest court, as key senators on both sides of the aisle said they anticipated her full Senate confirmation after she breezed through two days of meticulous and often aggressive questioning by members of the Judiciary Committee.

Over some 17 hours of direct questioning, the former dean of Harvard Law School demonstrated a wide command of constitutional law, deftly deflected Republican attacks on her record, and charmed the committee with a self-deprecating sense of humor.

Committee chairman Patrick Leahy, Democrat of Vermont, confidently predicted at a press conference yesterday that Kagan would be confirmed.

A leading Republican on the committee, Senator Orrin Hatch of Utah, said in an interview that it is inconceivable that Kagan’s nomination can be turned back.

“I’d be surprised if anything could happen to keep her off the court,’’ Hatch said.

Democrats control 58 Senate seats, following the death earlier this week of Senator Robert Byrd of West Virginia.

“All of them are going to vote for her,’’ Hatch said. He also ruled out a Republican filibuster to block her nomination.

“There’s nobody going to filibuster,’’ he said.

Another panel member, Republican John Cornyn of Texas, said he assumed Kagan would be confirmed.

And Senator Lindsey Graham, Republican of South Carolina, concluded a friendly exchange with Kagan by complimenting her performance over two days of tough questioning.

“I wish you well,’’ said Graham, smiling. “You have handled yourself well.’’

Kagan called her two-day trial “wearying,’’ but among the best experiences of her life.

President Obama in May nominated Kagan, 50, the US solicitor general, to replace retiring Justice John Paul Stevens, considered the leading liberal voice on the Supreme Court. Although her testimony is over, Kagan’s hearing continues this afternoon with testimony from outside witnesses called by Kagan’s supporters and opponents.

The Judiciary Committee — 12 Democrats and 7 Republicans — has not scheduled a vote on her nomination. After the committee votes on whether to recommend her, Kagan’s nomination will go to the full Senate, probably in mid-July, for a confirmation vote to the lifetime position.

Throughout the third day of the hearings yesterday, the aggressive tone established by Republicans on Tuesday seemed to wane. Kagan was peppered with detailed legal questions that allowed her to demonstrate her knowledge of law despite having never served as a judge. Senators sought to draw her out on such things as abortion and gays in the military, and also pushed her to defend her decision to restrict military recruitment of students while she was dean of the Harvard Law School.

She was repeatedly asked to define judicial activism, and she continued to reject the characterization from Republican critics that she would be an activist on the court who would push the law to achieve liberal goals.

“The worst thing you can say about a judge,’’ Kagan said, “is that the judge is results-oriented.’’

Kagan served in the Clinton White House as an associate counsel and a domestic policy adviser working to promote the administration’s agenda. She said she was proud of her service as an advocate but insisted that she understands that judging is another role.

“As a judge you are on nobody’s team,’’ she said. “As a judge, you are an independent actor.’’

She frequently declined to offer personal opinions on legal matters and would not answer when Senator Arlen Specter, Democrat of Pennsylvania, pressed her on whether she would vote as a justice to hear certain cases. When Kagan declined to answer, Specter cited an article Kagan wrote in 1995 in which she said judicial nomination hearings had “taken on an air of vacuity and farce,’’ because nominees often ducked hard questions. In an interview later, Specter would not say if her reluctance to answer would cost her his vote.

“Listen, there’s a calculation on the part of the nominee and her advisers that this is the way to testify, that this is the way to help themselves,’’ Specter said. “She was more forthcoming than most.’’

Republicans yesterday revisited complaints over Kagan’s handling of military recruiters while she was dean of Harvard Law School, from 2003 to 2006. For part of her tenure, she denied military recruiters use of official channels to contact students, because the “don’t ask-don’t tell’’ law that forbids openly gay service members violated the school’s policies on nondiscrimination. As a compromise, military recruiters were allowed to recruit through a campus veterans association.

Kagan maintained yesterday that recruiters had “excellent access’’ to students, whether interviews were sponsored by official channels or the campus veterans organization.

Senator Jeff Sessions, the ranking Republican on the committee, remained unsatisfied.

“I don’t think there’s any doubt they weren’t given full access,’’ he said. “That’s a big problem for me.’’

Leahy tried to counter the questioning by reading into the record a letter supporting Kagan from Lieutenant David Tressler, a US Army reservist in Afghanistan and a 2006 graduate of Harvard Law School.

Tressler wrote that Kagan’s policies on military recruiting were not antimilitary: “Kagan’s decision to uphold the school’s antidiscrimination policy for a brief period of time and express disagreement with [don’t ask-don’t tell] did not prevent us from talking with recruiters and joining.’’

Material from the Associated Press was used in this report.