On A No-Drama Day, A Debate Actually Breaks Out

  • U.S. Supreme Court nominee Elena  Kagan testifies during her confirmation hearings before the Senate Judiciary Committee on Capitol Hill, June 29. Kagan is President Obama's second Supreme Court nominee since taking office.
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    U.S. Supreme Court nominee Elena Kagan testifies during her confirmation hearings before the Senate Judiciary Committee on Capitol Hill, June 29. Kagan is President Obama's second Supreme Court nominee since taking office.
    Susan Walsh/AP
  • On the second day of Kagan's confirmation hearings, senators questioned her about her role as a judge and hot-button issues like abortion and gun rights.
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    On the second day of Kagan's confirmation hearings, senators questioned her about her role as a judge and hot-button issues like abortion and gun rights.
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  • Elena Kagan shakes hands with GOP Sen. Jeff Sessions (right) as Democratic Sen. Patrick Leahy looks on before the start of the confirmation hearing, June 28.
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    Elena Kagan shakes hands with GOP Sen. Jeff Sessions (right) as Democratic Sen. Patrick Leahy looks on before the start of the confirmation hearing, June 28.
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  • Elena Kagan takes her seat prior to the start of her confirmation hearing before the Senate Judiciary Committee.
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    Elena Kagan takes her seat prior to the start of her confirmation hearing before the Senate Judiciary Committee.
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  • Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings.
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    Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings.
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  • Kagan graduated from Hunter College High School, a publicly funded school for gifted students on Manhattan's Upper East Side, in 1977. Here, she raises her arm during a class trip to Philadelphia, in a photo from the yearbook.
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    Kagan graduated from Hunter College High School, a publicly funded school for gifted students on Manhattan's Upper East Side, in 1977. Here, she raises her arm during a class trip to Philadelphia, in a photo from the yearbook.
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  • Kagan (second from left in the front row) poses with members of the Hunter College High School student government in New York. Kagan, wearing a robe and holding a gavel, was the student council president.
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    Kagan (second from left in the front row) poses with members of the Hunter College High School student government in New York. Kagan, wearing a robe and holding a gavel, was the student council president.
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  • Kagan, who graduated from Harvard Law School, became the first female dean of the school in 2003. Here, she is pictured in an official portrait in Cambridge, Mass., in 2004.
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    Kagan, who graduated from Harvard Law School, became the first female dean of the school in 2003. Here, she is pictured in an official portrait in Cambridge, Mass., in 2004.
    Kathleen Dooher/Harvard Law School
  • Kagan, then President Obama's nominee to be solicitor general, is sworn in prior to her confirmation hearing before the Senate Judiciary Committee on February 10, 2009, along with Thomas Perelli, nominated for the post of associate attorney general.
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    Kagan, then President Obama's nominee to be solicitor general, is sworn in prior to her confirmation hearing before the Senate Judiciary Committee on February 10, 2009, along with Thomas Perelli, nominated for the post of associate attorney general.
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  • Former Supreme Court Justice Sandra Day O'Connor talks with Kagan during a forum on the state of the judiciary at Georgetown University Law Cnter May 20, 2009. If confirmed, Kagan would be the fourth woman to serve on the high court.
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    Former Supreme Court Justice Sandra Day O'Connor talks with Kagan during a forum on the state of the judiciary at Georgetown University Law Cnter May 20, 2009. If confirmed, Kagan would be the fourth woman to serve on the high court.
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  • Kagan and Gen. David Petraeus (center) participate in a pinning ceremony June 3, 2009, for Harvard Law School student Kyle Scherer. Opposition to Kagan has focused partly on her stance on the military; at Harvard, she opposed letting military recruiters on campus because of the "don't ask, don't tell" policy.
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    Kagan and Gen. David Petraeus (center) participate in a pinning ceremony June 3, 2009, for Harvard Law School student Kyle Scherer. Opposition to Kagan has focused partly on her stance on the military; at Harvard, she opposed letting military recruiters on campus because of the "don't ask, don't tell" policy.
    Phil Farnsworth/Harvard Law School
  • This artist rendering shows Kagan (right) arguing a campaign finance reform case before the Supreme Court on Sept. 9, 2009. Before becoming solicitor general, Kagan had never argued before the Supreme Court.
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    This artist rendering shows Kagan (right) arguing a campaign finance reform case before the Supreme Court on Sept. 9, 2009. Before becoming solicitor general, Kagan had never argued before the Supreme Court.
    AP Photo/Dana Verkouteran (Dana Verkouteran/AP
  • President Barack Obama meets with Kagan on April 30 in the Oval Office in Washington, DC. If confirmed, Kagan would become the 112th Justice of the Supreme Court.
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    President Barack Obama meets with Kagan on April 30 in the Oval Office in Washington, DC. If confirmed, Kagan would become the 112th Justice of the Supreme Court.
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  • Obama introduces Kagan as his choice to replace retiring Supreme Court Justice John Paul Stevens in the East Room of the White House on May 10, as Vice President Joe Biden applaudes.
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    Obama introduces Kagan as his choice to replace retiring Supreme Court Justice John Paul Stevens in the East Room of the White House on May 10, as Vice President Joe Biden applaudes.
    J. Scott Applewhite/AP

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At the opening of her Supreme Court confirmation hearings Monday, Elena Kagan's own words continued to come back to haunt, or — depending on one's viewpoint — encourage her.

Remember, she was reminded by one senator after another, when you wrote in a book review 15 years ago that Supreme Court confirmation hearings were exercises in "vacuity and farce"?

Her frank assessment, widely shared, proved irresistible Monday as she sat before the 19 members of the Senate Judiciary Committee who will decide her fate.

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And Republican Sen. Orrin Hatch of Utah — a former committee chairman himself — smilingly predicted that Kagan would continue to "hear a lot about" her words in days to come.

Seeking A Safe Passage

But will she prove an exception to the rule and, under direct questioning Tuesday, abandon the carefully parsed answers of those confirmed before her? Or at least the justices confirmed since 1987, when Robert Bork famously engaged committee members in a full-on constitutional discussion.

In the low-key ramp-up to her appearance before the committee, Kagan seemed unlikely to depart from the hearings-as-usual script she had so harshly criticized.

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And legal scholars like Michal Belknap of the University of California, San Diego found the notion far-fetched for anyone seeking safe passage to confirmation: "I'd like to hear her thoughts on certain important constitutional issues," he said before the hearings opened, "but there's about zero chance we'll get that."

Yet on a day when the death of Senate stalwart Robert Byrd and a Supreme Court decision on guns stole the news cycle, a stark and specific debate over the direction of the current court broke out in the cavernous Hart Senate Office Building's hearing room.

And the debate — waged in pointed statements by the committee's 12 Democrats and seven Republicans — suggested that Kagan may be unable to avoid the more active engagement that she herself advocated.

"This is a unique hearing," said Democratic Sen. Arlen Specter of Pennsylvania, a longtime committee member who for most of his years served as a Republican.

"The court has become an ideological battleground," said Specter, who lost his party's nomination for re-election and is serving his last months in the Senate. "And the activism is on both sides."

The Power Of Politics

That was underscored just hours before Kagan's hearing opened, by a controversial 5-4 Supreme Court decision that expands the individual right to bear arms to state and local gun laws.

That decision and another recent 5-4 ruling that lifted the ban on corporate and union spending on federal elections, a case argued and lost by Kagan in her role as solicitor general, will be two of the pillars on which Democrats will attempt to build their case this week.

The case? Not so much to sell Kagan, whose confirmation is expected, but to convince Americans following the process that the current court, led by Chief Justice John Roberts, has embarked on "radical change," in the words of committee member Dianne Feinstein, a California Democrat.

And Republicans, also looking ahead to November elections, will attempt to paint Kagan as a "judicial activist" herself, not the moderate, mainstream legal thinker her supporters portray.

Ranking committee member Jeff Sessions, an Alabama Republican, laid out with surgical efficiency the case his party will pursue against Kagan: her lack of judicial experience; her political work in the Clinton administration; a senior college thesis she wrote about socialism; and "activist" positions on guns, abortion, national security, military recruiting and First Amendment rights.

Roberts, during his own hearings five years ago, said he viewed the role of a high court justice as akin to an umpire, dispassionately calling balls and strikes.

Those comments were repeatedly invoked derisively by Democrats, who say the umpire has become a conservative crusader. Democratic Sen. Richard Durbin of Illinois, his voice dripping with sarcasm, said that for Republicans accusing Democrats of judicial activism, "I have two words for you: Citizens United," the shorthand name of the campaign-finance case.

In her platitudinous opening statement, Kagan understandably stayed away from her personal feelings about confirmation hearings and made no promises about how forthcoming she'll be in coming days.

Republican Sen. Lindsey Graham of South Carolina told Kagan she was a nominee he would have expected from President Obama and noted she would not change the ideological balance of the court.

He said that although she clearly meets the qualifications test, he wants to be convinced that she will "park" her liberalism when she sits on the high court.

"You're the best example of why hearings should be probative and meaningful," Graham said.

In less than 24 hours, it will be clear whether Kagan, whose path to the nominee's chair has been marked by a deliberate carefulness, will take the path of engagement last trod, enthusiastically, by Judge Robert Bork.

And we all know what happened to him.

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