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Kagan Says Justices Aren’t Umpires in Departure From Roberts

Elena Kagan, nominee for the U.S. Supreme Court
Elena Kagan, nominee for the U.S. Supreme Court, testifies on the second day of her confirmation hearing by the Senate Judiciary Committee in Washington. Photographer: Joshua Roberts/Bloomberg

Elena Kagan contrasted herself with the U.S. Supreme Court’s Republican appointees as she finished her Senate testimony, saying judges aren’t “robotic” umpires and must interpret the Constitution with an eye toward changing conditions.

In her second and final day answering questions from the panel considering her Supreme Court nomination, Kagan distanced herself from an analogy made by now-Chief Justice John Roberts during his 2005 confirmation hearing, when he likened judges to baseball umpires who simply call balls and strikes.

“The metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it,” Kagan said. “Judges do, in many of these cases, have to exercise judgment. They’re not easy calls.”

Kagan also made clear that she doesn’t share the “originalist” approach of Justices Antonin Scalia and Clarence Thomas, who say the Constitution should be interpreted in line with the meaning of its provisions when they were adopted.

Kagan said originalism can’t answer every constitutional question, in part because justices today confront issues that the framers of the Constitution didn’t envision.

“The Constitution does not change, but the court must apply it to changing conditions,” said Kagan, whom President Barack Obama nominated last month to succeed Justice John Paul Stevens, who retired this week.

Possible Counterweight

Kagan finished her testimony yesterday amid words of support from the panel’s Democrats and skepticism from its Republicans. Of the seven Republicans, only Lindsey Graham of South Carolina suggested he might vote for her, telling Kagan, “I think you’ve acquitted yourself very well.”

Senator Pat Leahy of Vermont, the Democratic chairman of the Judiciary Committee, predicted that Kagan will be confirmed. Arizona’s Jon Kyl, a Republican leader, said he doubted his party would try to block a vote.

Kagan’s testimony offered a glimpse at how she might serve as a counterweight to the court’s conservative wing, filling what some progressive scholars and advocates say is a needed role on a court that has rolled back campaign finance regulations, bolstered gun rights and trimmed civil rights laws.

“Kagan has done a terrific job of separating the wheat from the chaff of the conservative portrait of a model judge,” said Doug Kendall, president of the Constitutional Accountability Center, a Washington-based advocate for civil rights, the environment and voting rights. “She will call balls and strikes, but she has added the need for wisdom and good judgment back into the job of being a good justice.”

Three Women

Senate confirmation of Kagan would for the first time give the high court three female members.

The potential impact of that change at times lurked near the surface of the hearings, as when Republican Senator Tom Coburn of Oklahoma said the country is less free than it was 30 years ago.

Minutes later, Senator Amy Klobuchar, a Minnesota Democrat and one of two women on the 19-member panel, asked Kagan how many women were on the Judiciary Committee and the Supreme Court in 1980. The answer to both questions, Klobuchar said, was zero.

“So as I think about that question about if people were more free in 1980, I think it’s all in the eyes of the beholder,” Klobuchar said.

“I think there’s no question that women have greater opportunities now, although they could be made greater still,” Kagan said.

‘Good Faith’

Kagan took pains not to directly criticize the Roberts court, even for its decision this year striking down federal campaign finance restrictions that she had defended. “I’m sure that everybody up there is acting in good faith,” she said.

She suggested that Roberts’s umpire analogy had value, up to a point. Like umpires, she said, judges “should realize that they’re not the most important people in our democratic system of government.”

Kagan repeatedly declined to discuss issues that she said might come before the court, including gay marriage. On several occasions she said high-profile rulings by the Roberts court, including its decisions this year to overturn corporate campaign spending restrictions and to extend constitutional gun rights nationwide, represented “settled law.”

Kagan said she had “no thought, no agenda, no purpose” to reverse those rulings.

‘Empathy’ Revisited

She was more willing than Obama’s first high court nominee, Sonia Sotomayor, to align herself with his suggestion that judges should have “empathy” for the litigants before them. While Sotomayor said she wouldn’t use the president’s standard, Kagan instead tried to add a gloss to it.

“The judge is required to give consideration to each party to try to figure out what the case looks like from that party’s point of view,” she said. “But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it’s law all the way down.”

Her testimony left most of the panel’s Republicans voicing concern about the type of justice she would become.

Kagan “did distance herself from President Obama’s view that there should be something other than law that decides cases,” said Senator Jon Kyl, a Republican from Arizona. “She was very clear that she intended to decide cases based on the law. But that’s still a fairly general standard.”

Senator Jeff Sessions said he wasn’t sure she would be true to the Constitution. “A combination of record and statements leaves me uneasy,” he said.

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