updated 7/13/2010 12:34:59 PM ET 2010-07-13T16:34:59

The Senate Judiciary Committee postponed scheduled action Tuesday to send Elena Kagan's Supreme Court nomination to the full Senate for confirmation, setting a panel vote for next week.

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Republicans insisted on the delay, saying they needed more time to review Kagan's written answers to questions they posed to her after her confirmation hearings, and to inquire still further into how she would behave as a justice.

There's little doubt that the Judiciary panel, where Democrats have a lopsided majority, will approve President Barack Obama's nominee to succeed retiring Justice John Paul Stevens, and that she'll win Senate confirmation within weeks. Democrats have more than enough votes to elevate her, and a handful of Republicans is likely to join them.

But most GOP senators are expected to vote "no," and Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, strongly suggested he'll be one of them.

"Fundamentally, the nominee lacks the experience and intellectual rigor that you develop in the full-time practice of law or from serving as a judge," Sessions said of Kagan, who served as solicitor general but has never been a judge or spent substantial time practicing law.

He said Republicans still want to know whether Kagan would recuse herself from cases involving issues that arose while she was serving as the Obama administration's top lawyer, such as challenges to the constitutionality of the president's health care overhaul.

The notion that Kagan didn't weigh in or give advice on the measure in a way that would bar her from ethically ruling on it as a justice, Sessions said, is "difficult if not impossible to believe."

All seven GOP members of the panel signed a letter to Kagan Tuesday demanding answers on the subject before next week's vote.

Sen. Patrick Leahy, D-Vt., said he was granting the delay despite his suspicion that everyone on the committee had already decided how they would vote on Kagan. Not surprisingly, he said he plans to support her.

"I believe she will ably fill the seat occupied for decades by Justice Stevens with dignity and honor," Leahy said.

Senators are under pressure, however from the gun lobby and conservative groups to oppose Kagan.

The National Rifle Association is asking gun owners to urge senators to oppose Kagan or filibuster her confirmation. The pro-gun rights group said that it planned to begin circulating a Web advertisement this week comparing Kagan's answers on gun issues at her confirmation hearings with those of Obama's first high court nominee, Justice Sonia Sotomayor, who they contend misled senators last year about her support for the right to bear arms.

Some organizations on the left also have lingering questions about what kind of justice Kagan would be.

The Lawyers Committee for Civil Rights said Tuesday that it couldn't take a position on Kagan because it hadn't learned enough about her record on issues the group makes a priotity.

"Key questions remain regarding her civil rights record that we had hoped would be answered during the confirmations hearings, but were not completely," said Barbara Arnwine, the group's executive director, in a statement that called Kagan "accomplished" and "qualified."

The group endorsed Obama's first high court nominee, Justice Sonia Sotomayor, last year several weeks before the Senate confirmed her.

If confirmed, Kagan, 50, would become the fourth woman to have served on the court, as well as the third sitting female justice.

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

Video: How will Roberts court shape up?

  1. Closed captioning of: How will Roberts court shape up?

    >>> well, elena kagan 's seat is probably secure, but what will the future of john roberts court look like? ted olson and david boise have teamed up to fight california 's ban on same sex marriage. before we get to the future of the court , i want to start with the news of the day. ted, i want to start with sort of this lawsuit the federal government has initiated against the state of arizona . walk us through the procedure on this. so the federal government is suing a state over a statute. where will it go from here? first, what court hears it first, and how long will it take to the get to the supreme court ?

    >> well, it is my understanding they file the case in a federal district court in arizona to seek the blockage of the enforcement, the effective date of the statute, which is july 29th . they are asking a judge to enjoin arizona from enforcing that statute. one of the issues that they have is that they are saying that enforcement of the statute will interfere with federal enforcement of immigration laws , and yet they are asking to stop the implementation of the statute before they know how it works. the answer to your question is it would go to the federal district court in arizona and to the ninth court of appeals , the appeals court for the western states . then onto the united states supreme court . they can probably move this pretty fast because it is the united states . it is federal law , and it is state law , and everybody understands the importance of this because other states are considering similar legislation.

    >> what's fast, really quick?

    >> pardon me? i would say, you know, as we found out practicing law , everything changes. but i would think that it might take a year or so, maybe a year and a half, before they get a decision from the united states supreme court , but that depends on a lot of factors.

    >> savannah?

    >> david , it is savannah here in washington. i just wanted to ask you, in a general sense, know you guys aren't very close with this complaint, but how rare is it to have the federal government challenging supremacy grounds as state law ?

    >> it is unusual. often there are challenges to state laws on supremacy grounds. that happens all the time in litigation, litigation, but it's usually not left up to the federal government to do that. usually that is private parties who are doing that. it is unusual to have the federal government step in so quickly and so decisively in connection with a state law .

    >> let's move to what the case, the two of you are working on. you have done this as a private citizen, but you're challenging a state law in california and at some point on what grounds are you challenging this law in california that you want the supreme court to hear?

    >> we are challenging proposition eight which is a measure adopted by the california voters to amend the california constitution that said that marriages would only be recognized between a man and a woman. they put that in the california constitution taking away the rights of gay and lesbian citizens to get married, which had already been recognized in california . david and i are challenging that constitutional amendment on federal constitutional grounds and we're representing private individuals who, in close relationships who wish to get married and we're saying that it denies them the equal protection of the law because we're putting gay and lesbian fellow citizens in a separate class denying them rights that are available to other people and taking away from them the right to marry, which the supreme court has repeatedly held is a fundamental right in our country.

    >> david , i'm sure you watched the elena kagan confirmation hearings. it seemed democrats were making an argument that the roberts court was a conservative activist court . of course, that's a twist on the age-old complaint by conservatives of judicial activism on the left side of the spectrum. do you think that roberts court is a conservative activist court or is that activist label just become kind of a catch phrase for saying, we don't agree with those decisions?

    >> well, i think the roberts ' court , to some extent, is a conservative court , at least when it's deciding things usually chief justice and majority. but every court is activist. what happens is that the losing side always decries the winning side as activists. when that court strikes down state statutes, federal statutes, expands rights, what you have here is a different focus on rights than some of the other justices on the supreme court might be more in favor of. you also have different state and federal statutes being struck down. but activism is activism. if by activism you mean the supreme court stepping in and striking down state statutes, striking down congressional statutes and giving a particular lead narrow interpretation to laws that they don't like and a broad interpretation to laws that they do like, almost every court is activist in that sense.

    >> fair assessment really quickly, ted. activist is in the eye of the beholder .

    >> people who say that over and over again. what david , i think, was saying is one important point. we have an independent judiciary to enforce the constitution. legislatures and the executive branch officials sometimes deprive people of their individual rights because they're minorities. that's what we expect the courts to help us with.

    >> ted olson , david boies , thank you both for being here. we look forward to seeing you here as we use the thin air to say really smart things or really crazy things.

    >> i'm very curious if david and ted agree on everything now or if they still have their disagreements? i wonder if i have the answer.

    >> we still disagree on citizen


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