Kagan On Senators' Minds As Judiciary Panel Meets

Supreme Court nominee Elena Kagan meets with Sen. Benjamin Cardin. i i

hide captionSupreme Court nominee Elena Kagan meets Thursday with Sen. Benjamin Cardin (D-MD) on Capitol Hill.

Alex Brandon/AP
Supreme Court nominee Elena Kagan meets with Sen. Benjamin Cardin.

Supreme Court nominee Elena Kagan meets Thursday with Sen. Benjamin Cardin (D-MD) on Capitol Hill.

Alex Brandon/AP

Supreme Court nominee Elena Kagan spent a second full day on Capitol Hill on Thursday, introducing herself to senators who will determine her fate. No official date has been set for her confirmation hearing, but possible lines of questioning were already being drawn by the Senate Judiciary Committee.

The matter at hand for the committee Thursday was a vote on Goodwin Liu, a liberal nominee to a federal appeals court on the West Coast. But the Supreme Court was clearly on everyone's mind.

The case made for why Liu, a Berkeley law professor, deserved the committee's endorsement for a lifetime appointment to the 9th Circuit Court of Appeals had a familiar ring. Chairman Patrick Leahy pointed out the same kinds of qualities in Liu that Leahy and others are also attributing to high court nominee Kagan.

"He has an extraordinary legal mind. He's a person of integrity," Leahy said. "I don't think anyone should question his qualifications, talent or character — all of which are first rate."

And as Jeff Sessions, the panel's top Republican, argued against advancing Liu's nomination, he raised the same questions regarding a lack of experience that he has raised about Kagan's nomination.

"He's had no meaningful record as a practicing attorney or as a judge," Sessions said. "It's not disqualifying not to be a judge, but I think you should have some realistic experience in the reality and discipline of practice of law if you haven't had a judicial record."

South Carolina Republican Lindsey Graham broke ranks with his GOP colleagues on the Supreme Court nomination of Sonia Sotomayor last year; he did so again Thursday when assessing Kagan, currently the nation's solicitor general.

"Put me in the camp that you don't have to be a judge prior to being on the Supreme Court," he said. "You do have to be qualified. I don't know how it'll come out with Ms. Kagan. Some of the things she's done as solicitor general have been very impressive, quite frankly, and some of the things she's said in the past are disturbing, but at the end of the day, elections do have consequences, and I'll be deferential to a point."

But not to the point of supporting Liu's nomination, Graham said — he called that a bridge too far. Texas Republican John Cornyn agreed.

"He thinks policymaking is the appropriate role for a judge. I couldn't disagree more," Cornyn said of Liu. "A judge's job is to interpret and apply the law, not to make it. When judges become lawmakers, they become lawbreakers."

California Democrat Dianne Feinstein came to Liu's defense. She said some of her colleagues clearly wanted a nominee to follow only the original intent of the Constitution's authors.

"But if all judges believed that the Constitution should be interpreted exactly as it was written, schools could still be legally segregated, states could prohibit married couples from using birth control, the minimum wage would be unconstitutional, and as a woman, I would not be eligible to sit here today as an elected United States senator," she said.

In the end, Liu's nomination was approved 12-7 in a straight party-line vote for consideration by the full Senate.

Leahy announced that a routine 10-page list of questions was sent Thursday to Kagan to prepare for her confirmation hearing. Republicans on the panel warned they still need to know much more about Kagan to make an informed decision.

Key, they said, would be getting documents from her time as a White House policy adviser in the Clinton administration.

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