Kagan Advocates Consensus, Refuses to Criticize Court

U.S. Supreme Court nominee Elena Kagan said justices should seek greater consensus when possible, while refusing to criticize the divided decisions reached by the court under Chief Justice John Roberts.

“The court is served best and our country is served best when people trust the court as an entirely nonpolitical body,” Kagan said during a third day of hearings on her nomination before the Senate Judiciary Committee. “One of the benefits of narrow decisions is that they enable consensus to a greater degree than broad, far-reaching decisions.”

Kagan, nominated last month by President Barack Obama, is trying to counter Republican claims that she is too political as she seeks to become the third woman on the high court. She wouldn’t let fellow Democrat and Rhode Island Senator Sheldon Whitehouse draw her into condemning recent 5-4 decisions.

“I’m not agreeing to your characterization of the current court,” Kagan, 50, said today. “I’m sure that everybody up there is acting in good faith.”

Kagan distanced herself from the analogy made by Roberts during his 2005 confirmation hearing, when he likened judges to baseball umpires who simply call balls and strikes. That analogy is “correct in several important respects but like all metaphors it does have its limits,” Kagan said.

‘Not Easy Calls’

While judges “should realize that they’re not the most important people in our democratic system of government,” the metaphor incorrectly suggests that judging is “a robotic enterprise,” Kagan said.

“Judges do, in many of these cases, have to exercise judgment,” Kagan said. “They’re not easy calls.”

Kagan said judges should realize that the law at times will force them to reach an outcome they don’t like. She pointed to a 2009 decision written by Justice Antonin Scalia barring prosecutors from using forensic reports in criminal trials unless they put an expert on the stand to explain the contents.

Scalia is one of the court’s most conservative justices, and Kagan said he would almost certainly prefer to side with the prosecution.

“It’s actually a good example of where a person’s view of the law comes out a different way” from the outcome they might desire, Kagan said. For all judges “that should happen in their lives,” she said.

No Tilt

If confirmed, Kagan, a New York native, would replace Justice John Paul Stevens. Her confirmation almost certainly wouldn’t affect the court’s ideological balance, which tilts 5-4 for conservatives on most of the divisive issues.

Arizona Senator Jon Kyl, a Republican leader, said it’s “highly improbable” that his party would use a parliamentary maneuver called a filibuster to try to block her nomination. Democrats control 58 of 99 votes in the Senate.

“She has been, in my view, a witness who has manifested a deep knowledge of the law, and she’s certainly very adept at describing the way she thinks about the law,” Kyl told reporters today. “By a different token, I think she has been very adept at avoiding very specific questions that could result in criticism of her point of view.”

Utah Senator Orrin Hatch, another Republican on the panel, said he was “troubled” that Kagan, as an aide to former President Bill Clinton in the late 1990s, had worked to change language used by a doctors’ group on what opponents call partial-birth abortion. Draft language that said an expert panel didn’t believe the method was the only way to save a woman’s life or protect her health would be a “disaster,” Kagan wrote at the time.

‘Vivid Reminder’

Kagan said the issue was “enormously hard” and that her role in that situation was to ensure that any statement from the doctors also reflected their belief that the procedure was an option to protect the life and health of the mother.

“There’s no way in which I would have or could have intervened” to get the group to “change its medical views,” Kagan said.

Yesterday, Kagan parried lawmakers’ questions with humor and a command of the law. She stood her ground when challenged - - rejecting Republican accusations that she ignored the law by restricting military recruitment as dean of Harvard Law School - - while avoiding gaffes that might jeopardize her nomination.

The panel’s top Republican, Senator Jeff Sessions of Alabama, was far more critical. He stopped just short of accusing her of lying about the military recruitment, saying today her testimony “was too consistent with an inaccurate spin.”

‘Gifts and Graces’

While praising Kagan’s “gifts and graces,” Session said he doesn’t think Kagan has satisfied critics.

It’s difficult to know whether “you’d be more like John Roberts or more like Ruth Bader Ginsburg,” he said, referring to the justice nominated by Clinton who aligns with the court’s liberal wing.

Kagan, currently Obama’s chief high court lawyer, described herself as a lifelong Democrat yesterday. “My views are generally progressive,” Kagan said. Still, she said her politics would play no role in her decisions as a justice.

In response to a question, Kagan declined to say whether states should have jurisdiction over marriage because a case about gay marriage is “coming down the road.”

She said she would respect the court’s decision in January allowing unlimited campaign spending by corporations and unions. She also said she would respect two recent rulings, one in 2008 and one this week, interpreting the Constitution’s Second Amendment to protect individual gun rights.

Kagan said today she had “no thought, no agenda, no purpose” to reverse such high court rulings.

To contact the reporters on this story: Laura Litvan in Washington at llitvan@bloomberg.net; Kristin Jensen in Washington at kjensen@bloomberg.net

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