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Sessions: 'Ms. Kagan Has Less Real Legal Experience Of Any Nominee In At least 50 Years'

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Kagan Vows Restraint If Confirmed To Supreme Court

Kagan Vows Restraint If Confirmed To Supreme Court

On the first day of her Senate hearings Monday, Supreme Court nominee Elena Kagan vowed to serve with a "commitment to evenhandedness, principle and restraint" if confirmed.

NPR Analysis

Listen to NPR's Special Report on Elena Kagan's nomination hearing.

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President Obama's second high court nominee told the Senate Judiciary Committee that "to be nominated to the Supreme Court is the honor of a lifetime." And she promised to listen to each case with an "open mind" and to "render impartial justice."

"Everyone who comes before the court, regardless of wealth or power or station, receives the same process or the same protections. ... What it promises is nothing less than a fair shake for every American," Kagan said.

For a year, Kagan has acted as the Obama administration's solicitor general, its highest representative to the U.S. Supreme Court. She highlighted her experience as dean of Harvard Law School and her tenure as a clerk to Justice Thurgood Marshall.

The question of Kagan's experience — she has never before served as a judge — is among the top issues senators addressed during their opening statements Monday. Her remarks gave skeptical members of Congress some deference as she expressed "simple admiration for the democratic process."

"That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests," Kagan said. "The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people."

Senators Lay Out Their Cases

The opening day of Kagan's hearings gave her supporters and detractors on the Senate Judiciary Committee a chance to highlight their arguments in broad brush strokes.

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Republicans used their time to express concerns about Kagan's sparse record and about her days as a Democratic policy aide, which they fear could color her judicial philosophy. But Democrats turned the nominee's lack of judicial experience into a positive trait: They said that Kagan developed practical experience that’s unusual for the high court, which will help her understand the problems of ordinary Americans.

"Elena Kagan earned her place at the top of the legal profession," Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, said. "Her legal qualifications are unassailable."

Supreme Court nominee Elena Kagan shakes hands with GOP Sen. Jeff Sessions (right) as Democratic Sen. Patrick Leahy looks on before the start of Monday's confirmation hearing. Susan Walsh/AP hide caption

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Susan Walsh/AP

Supreme Court nominee Elena Kagan shakes hands with GOP Sen. Jeff Sessions (right) as Democratic Sen. Patrick Leahy looks on before the start of Monday's confirmation hearing.

Susan Walsh/AP

Sen. Dianne Feinstein (D-CA) added that she found Kagan's experience in the academy and her path to the Supreme Court to be "refreshing" for a bench filled with longtime judges.

But Sen. Charles Grassley (R-IA) knocked Kagan's background, which he said raised questions she would need to answer this week. "Your relatively thin record clearly shows you've been a political lawyer," Grassley said. "You offered recommendations that were more political than legal."

Sen. Jeff Sessions (R-AL) reminded the panel of an article Kagan wrote casting doubt on the effectiveness of confirmation hearings.

"Ms. Kagan has called previous confirmation hearings 'vapid' and 'hollow' and has argued that nominees for a lifetime position owe a greater degree of candor and openness to the committee," Sessions said. "I agree that candor is needed, and I look forward to that kind of exchange this week."

Opening Statements

Kagan: 'If Confirmed, I Will Remember And Abide By All These Lessons'

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Leahy: 'I Will Urge Solicitor General Kagan ... To Be Open'

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Sessions: 'Ms. Kagan Has Less Real Legal Experience Of Any Nominee In At least 50 Years'

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But the senators may be aiming their pitches at an audience of likely voters in November's midterm elections, rather than their colleagues. Kagan's confirmation seems likely, according to legal experts and political analysts, barring an unforeseen slip-up in testimony this week.

So her hearings, replete with more than a dozen witnesses on both sides of the aisle, may wind up revealing more about the nation's political climate than Kagan's judging style.

Lines Of Attack

Judicial "activism" surfaced as another common theme among committee members. Sen. Arlen Specter (D-PA) more or less summed up the tenor of the day in one simple line: "The court — regrettably, I think — has become an ideological battleground, and the activism has been on both sides," he said.

During his statement, New York Democrat Charles Schumer celebrated Kagan's experience at Harvard Law, where she commanded a budget of $160 million and managed 500 employees, saying she served as a "terrific antidote" to a lack of practical, real-world experience on the court. But Schumer also expressed his hope that Kagan, if confirmed, could peel off conservative votes and arrest "the rightward shift under Chief Justice Roberts."

Sen. John Cornyn (R-TX) pulled the nominee in a different direction.

"It's important in these hearings to find out whether you would move the court in a traditional versus an activist direction. ... Solicitor General, I must say that the burden is on you. I hope you can persuade us the path you would take if you are confirmed to the Supreme Court."

At a meeting with reporters earlier this month, Sen. Jon Kyl (R-AZ) said that the "burden of proof" that she is fit for the high court would fall on Kagan because she has no experience as a judge. Kyl and Sessions have said they are bothered by Kagan's positions on gun rights and abortion, citing documents she wrote during her time in the Clinton domestic policy operation.

Bio: Supreme Court Nominee Elena Kagan

Legal experts and political analysts say Elena Kagan's confirmation seems likely, barring an unforeseen slip-up in testimony. Tim Sloan/AFP/Getty Images hide caption

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Tim Sloan/AFP/Getty Images

Born: April 28, 1960, in New York City, where she was raised on the city's Upper West Side.

Family: Mother, Gloria, public elementary school teacher. Father, Robert, attorney. Both parents deceased. Brothers Marc and Irving, both New York City public school teachers.

Recent Experience: Appointed solicitor general by President Obama on Jan. 26, 2009, and confirmed by Senate 61-31 in March, becoming first woman to serve as executive branch's chief Supreme Court lawyer. Her first oral argument before the Supreme Court was last September in a campaign finance case.

Path To Nomination: Law clerk for Judge Abner Mikva of U.S. Court of Appeals for the D.C. Circuit, 1986-87; law clerk for Supreme Court Justice Thurgood Marshall, 1987-88; private practice at Williams & Connolly, 1989-91; University of Chicago School of Law professor, 1991-95; lawyer and domestic policy adviser, Clinton White House, 1995-99; visiting professor and then professor at Harvard, 1999-2003; Harvard Law School Dean, 2003-09.

Education: Princeton University, 1981; Oxford University, master's degree in philosophy, 1983; Harvard Law School, J.D., 1986.

But Monday, Leahy cautioned his colleagues to be fair. "No one should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career, lacks independence," he said.

Senate conservatives have launched other arguments against Kagan. They say she and the White House have played down Kagan's role in reinstating a policy that banned military recruiters from using career services facilities on the Harvard Law School campus and then overstated her involvement in lifting that ban. And they cast doubt on her admiration for the judges she clerked for, Marshall and D.C. Circuit Appeals Court Judge Abner Mikva, and an Israeli judge whom they deem to be a liberal activist.

A Life In The Law

Friends and former colleagues say Kagan stood out as a tough-minded, articulate advocate from her earliest days as a law student. After graduating from Harvard, she racked up clerkships with Mikva and Marshall, whom she has called her legal hero.

Eventually, Kagan wound up in the administration of President Bill Clinton, whose Little Rock-based archives has released 170,000 pages of documents and e-mail messages from her tenure in the counsel's office and as a domestic policy adviser.

In prose that demonstrated bureaucratic muscle, a mastery of office politics, and a sometimes snide tone, Kagan set out what she believed to be Clinton's best course of action on regulating semi-automatic weapons, late abortions and other hot-button topics.

Kagan went on to become a law professor at the University of Chicago and, ultimately, dean of Harvard Law School, where she helped facilitate healing on a campus fractured by ideological rivalries. Some of her supporters there, including conservative professors Charles Fried and Jack Goldsmith, have spoken up in support of her high court nomination in recent weeks.

The Days Ahead

Now that Kagan and members of the Senate Judiciary Committee have delivered opening remarks, Tuesday and Wednesday are likely to be filled with multiple rounds of questioning. Later in the week, witnesses identified by the Democrats and Republicans will speak about Kagan's credentials and her candidacy to serve as the current Supreme Court's third female judge.

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