Video: Judging Elena Kagan

  1. Transcript of: Judging Elena Kagan

    BRIAN WILLIAMS, anchor: Things are also moving quickly for President Obama 's second nominee to the Supreme Court , Elana Kagan . She is completing her second and final day of questioning by the Senate Judiciary Committee . While candid on some points, she's been careful not to criticize recent court decisions, and at times has even backed away from some of her own stated positions. Our report from our justice correspondent Pete Williams .

    PETE WILLIAMS reporting: Elana Kagan refused to be drawn into criticizing decisions by the Supreme Court she's been nominated to join, but she took issue with a now-familiar description of a Justice 's job given five years ago by John Roberts , nominated for Chief Justice.

    Justice JOHN ROBERTS: I will remember that it's my job to call balls and strikes and not to pitch or bat.

    P. WILLIAMS: She said that's partly true, but wrongly implies that a judge's job is robotic.

    Ms. ELANA KAGAN: That we just sort of stand there and, you know, we go ball and strike and everything is clear-cut and that there is -- that there is no judgment in the process. And I do think that that's not right.

    P. WILLIAMS: She appeared today to back away from the position she expressed last year on gay marriage. In written answer, submitted for her nomination as solicitor general, she said, quote, "There is no federal constitutional right to same-sex marriage."

    Senator JON KYL (Republican, Arizona): So you wouldn't tell us today then whether you believe that the Constitution could be properly read to include such a right?

    Ms. KAGAN: I don't think that would be appropriate, but there is a case that's pending. This -- the case may -- or some other case might come before the court, and so I couldn't go any further than that.

    P. WILLIAMS: But she very clearly rejected something she once wrote as a student. In a college paper she had said judges have "authority to make social changes," power that "becomes irresistible."

    Ms. KAGAN: Let's just throw that piece of work in the trash, why don't we? You know, that it was something that I wrote before I went to law school and didn't know much.

    P. WILLIAMS: This was her last day for questions. Senators from both parties say the hearings have gone well enough that there's little doubt she'll be confirmed within a month. Pete Williams ,

By
updated 6/30/2010 7:32:40 PM ET 2010-06-30T23:32:40

Cruising toward confirmation, Supreme Court nominee Elena Kagan completed grueling Senate questioning Wednesday, unscathed by Republican challenges on abortion, gays in the military and gun rights while sidestepping partisan debate about GOP-named judges pulling the court to the right.

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Kagan emerged from three days of vetting by the Senate Judiciary Committee much as she had begun, declaring she'd be an independent and impartial judge and denying Republican suggestions that she would be unable to separate her political leanings from her job as a justice.

Democrats said President Barack Obama's nominee to succeed retiring Justice John Paul Stevens was on track to become the fourth woman in Supreme Court history.

"Solicitor General Kagan will be confirmed," declared Sen. Patrick Leahy, D-Vt., the panel chairman.

Republicans, despairing of their inability to get Kagan to reveal her legal views or say anything that might threaten her confirmation over more than 15 hours of questioning, acknowledged as much.

"I assume she will be," said Sen. John Cornyn, R-Texas.

Kagan, prompted by Democratic supporters on the panel, gave a blunt denunciation of "results-oriented judging," deciding cases based on preconceived conclusions, but she refused to join them in applying the criticism to the current court under conservative Chief Justice John Roberts. "I'm sure that everybody up there is acting in good faith," she said.

Sen. Jeff Sessions of Alabama, the top Republican on the panel, said the combination of some of Kagan's careful answers and her record "leaves me uneasy" about her confirmation.

Kagan, more expansive and animated during her third and final day in the witness chair for nationally televised hearings, relaxed enough to banter with senators about the sometimes-tedious proceedings, and her expectations of being confirmed.

"I can't come back?" she asked Leahy facetiously when he suggested that she should watch testimony by outside witnesses scheduled for Thursday afternoon "with your feet up" somewhere.

Dodging Republican Sen. Lindsey Graham's attempts to draw her into naming a judge she considered an "activist," Kagan deadpanned, "I have a feeling if I do that, I'm going to end up doing many things that I regret."

Overall, she said of the hearings as they drew to a close, "I found it somewhat wearying but actually a great moment in my life."

On one controversial matter, Kagan defended her efforts as a domestic policy aide to Clinton to scale back a GOP-proposed ban on a procedure opponents call partial-birth abortion — something she called "an incredibly difficult issue."

The former president, she said, "thought that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman."

Sen. Orrin Hatch, R-Utah, pressed Kagan about a note she wrote saying it would be "a disaster" if the American College of Obstetricians and Gynecologists issued a statement saying there was no case in which the procedure was necessary, and about her intervention to prevent the group from doing so.

She responded that the disaster would have been if the organization's statement didn't reflect its full view that in some instances, the procedure was "medically best."

"This was all done in order to present ... both to the president and to Congress the most accurate understanding of what this important organization of doctors believed," Kagan said.

Later, responding to Graham, Kagan denied that she had tried to allow the broadest possible practice of the procedure, in line with her own views on abortion.

"It's not true. I had no agenda with respect to this issue," Kagan said.

Questioned by Sen. Tom Coburn, R-Okla., on guns, Kagan said she accepts a recent ruling upholding individuals' rights to possess firearms, but she would not say whether she believed there was a "fundamental right" — meaning one that applies to states as well as the federal government — to bear arms.

A seemingly incredulous Coburn asked Kagan whether she believed in "unalienable rights," such as those referenced in the Declaration of Independence.

"You should not want me to act in any way on the basis of such a belief" in people's rights outside the Constitution and laws, Kagan retorted. "I think you should want me to act on the basis of law."

For the second day in a row, Kagan asserted she would be able to separate her personal and political views from her job as a justice.

"As a judge, you are on nobody's team. As a judge, you are an independent actor," Kagan said.

She also defended her decision as solicitor general not to pursue two cases challenging the constitutionality of the military's ban on openly gay soldiers. Sessions pressed her on that decision, given "your widely publicized opposition to the 'don't ask, don't tell' law" and a statute meant to bolster it.

Kagan said that one of the cases Sessions cited had upheld the law's constitutionality. In the other, after consulting with Pentagon lawyers, she said she made a strategic decision to wait before taking action.

Kagan asserted that in both cases, she had acted "consistently with the responsibility which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy."

Democrats used their time with Kagan largely to criticize a recent string of 5-4 decisions by the court, especially its January ruling that struck down long-standing precedent to say corporations and labor unions were free to spend their own money on political activity.

Sen. Sheldon Whitehouse, D-R.I., said justices named by Republican presidents were "driving the law in a different direction by the narrowest possible margin."

"I want to make it clear that I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do," Kagan said. But she added that she believes the court should seek to make less far-reaching decisions to engender more consensus, which she called "a very good thing for the judicial process and for the country."

Democratic Sen. Arlen Specter of Pennsylvania, thwarted several times in his attempts to get Kagan to say whether she would recommend that the Supreme Court hear specific cases, or weigh in on standards for deciding a case, said he was giving up — and wondered aloud whether there was any way short of opposing her confirmation to get a straight answer.

"It would be my hope that we could find some place between voting no and having some sort of substantive answers," Specter said, "but I don't know that it would be useful to pursue these questions any further."

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Photos: Elena Kagan, Supreme Court-bound?

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  1. In this image released by the White House, shows 9-year-old Elena Kagan, left, with her family on Jan. 24, 1970. (AP) Back to slideshow navigation
  2. Elena Kagan selected a quotation from former Supreme Court Justice Felix Frankfurter to accompany this photo from 1977 in her Hunter College high school year book: "Government is itself an art, one of the subtlest of arts." (Ellen Purtell / Hunter High School via AP) Back to slideshow navigation
  3. In this undated photo released by Hunter College High school, Kagan, second from left in the front row, poses with members of the student government in the school's 1977 yearbook. Kagan, wearing a robe and holding a gavel, was the student council president. (Ellen Purtell / /Hunter High School via AP) Back to slideshow navigation
  4. Elena Kagan, standing, served as editorial chairman for The Daily Princetonian while she studied history as an undergraduate at the university. The New York City native graduated in 1981. (Courtesy of The Daily Princetonian) Back to slideshow navigation
  5. Kagan graduated in 1981 summa cum laude from Princeton with a degree in history. (Courtesy of Princeton University) Back to slideshow navigation
  6. Kagan joined the University of Chicago Law School faculty as an assistant professor in 1991 and served as a tenured professor from 1995 to 1997. (AP) Back to slideshow navigation
  7. In this 1992 photo provided by the University of Chicago Law School, Elena Kagan, left, then an assistant professor at the university, participates in the law school's faculty-student trivia contest with Daniel Shaviro, former law school professor, now with New York University. (AP) Back to slideshow navigation
  8. In this 1993 photo provided by the University of Chicago Law School, assistant professor Elena Kagan plays in a softball game. (AP) Back to slideshow navigation
  9. In 1999, Kagan, who earned her law degree at Harvard University, returned to the campus as a member of the faculty. This photo provided by the university shows Kagan in 2003 when she was the law school dean. (Harvard University via AP) Back to slideshow navigation
  10. Former U.S. Supreme Court Justice Sandra Day O'Connor talks to Solicitor General Kagan during the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  11. U.S. Solicitor General Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  12. When Supreme Court Justice Stevens announced his retirement, Kagan's name was quickly floated as a potential replacement. A year earlier, the Senate confirmed her as Solicitor General by a vote of 61-31, with only seven Republicans supporting her. (Jay Mallin / Zuma Press) Back to slideshow navigation
  13. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office April 30, 2010. (Pete Souza / White House handout) Back to slideshow navigation
  14. Vice President Joe Biden, left, and President Barack Obama, right, applaud as Solicitor General Elena Kagan accepts her nomination to the Supreme Court at the White House in Washington on Monday May 10, 2010. (Jim Watson / AFP - Getty Images) Back to slideshow navigation
  15. Supreme Court nominee Elena Kagan, rides the Senate subway during a day of meetings on Capitol Hill in Washington, D.C., on May 12. (Harry Hamburg / AP) Back to slideshow navigation
  16. Senate Majority Leader Harry Reid meets with Elena Kagan on Capitol Hill on May 12. (Alex Brandon / AP) Back to slideshow navigation
  17. Elena Kagan talks with Sen. Arlen Specter in his office on Capitol Hill on May 13. (Alex Brandon / AP) Back to slideshow navigation
  18. Elena Kagan sits with Sen. Lindsey Graham on May 18 as part of her visits with senators who will vote on her confirmation to replace retiring Justice John Paul Stevens on the Supreme Court. (Mark Wilson / Getty Images) Back to slideshow navigation
  19. Supreme Court nominee Elena Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings on Capitol Hill June 28, in Washington, D.C. Kagan is President Barack Obama's second Supreme Court nominee since taking office. (Pablo Martinez Monsivias / Pool via Getty Images) Back to slideshow navigation
  20. Elena Kagan is sworn in as the Supreme Court's newest member as Chief Justice John Roberts, right, administers the judicial oath, at the Supreme Court Building in Washington, D.C., on Saturday, Aug. 7. The Bible is held by Jeffrey Minear, center, counselor to the chief justice. Kagan, 50, who replaces retired Justice John Paul Stevens, becomes the fourth woman to sit on the high court, and is the first Supreme Court justice in nearly four decades with no previous experience as a judge. (J. Scott Applewhite / AP) Back to slideshow navigation
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