U.S. Supreme Court nominee Elena Kagan on Wednesday continued what appears to be a steady march to confirmation. She easily fielded questions from senators, confidently discussing legal principles. At the same time she declined to give any hint of how she would rule on, or even approach, most issues.
At times Wednesday, Chief Justice John Roberts seemed to be as much a presence in the hearing room as Kagan. Early Wednesday morning Democratic Senator Amy Klobuchar asked Kagan if she agreed with Roberts' statement at his confirmation hearing that judges are like umpires — they don't make the rules. Their job is just to call balls and strikes. Kagan said she agreed with Roberts in part. That a judge, like an umpire, should not be rooting for one team or the other. And that judges, like umpires, should remember they are not the most important people on the field. They should understand their role is restricted in our democratic system.
But there are limits to the comparison, Kagan added. "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. That it’s easy – that we just sort of stand there and, you know, we go ‘ball’ and ‘strike’ and everything is clear cut, and that there’s…that there’s no judgment in the process," she said.
But being a judge does involve making judgments she acknowledged, adding that even though these may be close calls, these judgmnts are still based on law.
"You’re looking at law, and only at law,” she stressed. “Not your political preferences, not your personal preferences.” But that does not mean that there are clear-cut answers. “Not every case is decided 9-0,” precisely because “those legal judgments are ones in which reasonable people can reasonably disagree, " she said.
Senators were largely unsuccessful, though, in getting Kagan to say how she would call any of these legal balls and strikes or even how she would measure them.
That was extremely frustrating to Republican senators, and even some Democrats.
Arizona Republican Jon Kyl grew increasingly angry, finally telling Kagan, ""We don’t have a lot of time, and I’m gonna to pretend like I’m a Supreme Court justice … and you’re still the solicitor general, and I will interrupt you if I think we need to move on."
And Democrat Arlen Specter of Pennsylvania accused the nominee of stonewalling in response to questions about what legal tests to use in evaluating the constitutionality of legislation. He bluntly told her she had refused to answer “anything.” Kagan quickly responded, “you shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments, and without reading briefs, and without talking to colleagues.”
The question, said Specter, is where does the Senate go from here.
He told Kagan she had taken a path followed ever since the failed Robert Bork nomination, refusing to give substantive answers about issues that have been before the court in the past, and refusing to say how she would even approach such issues in the future. Kagan's testimony, said Specter, mirrored the testimony of nominee John Roberts five years ago when Roberts pledged to defer to congressional judgments where possible and to respect judicial precedent. This year, however, Roberts was part of the five justice majority that invalidated a key provision of the McCain Feingold law — a law that was upheld by the Supreme Court just seven years ago.
Specter called Roberts' concurring opinion in Citizens United, "a repudiation of everything he testified to, just diametrically opposed."
The testimony that began Wednesday morning went well into the night, concluding with a closed-door session to discuss Kagan’s FBI file and documents from her Clinton White House years that were not made public but were made available to senators.
The death of Senator Robert Byrd has thrown a monkey wrench into the hearing schedule, with events honoring Byrd taking place here in Washington and in West Virginia Thursday and Friday. That will cut into the daytime hours the Senate Judiciary Committee can operate, so witnesses for and against the nominee are scheduled to begin testifying late Thursday afternoon. They too will likely continue late into the evening if necessary so that the Kagan confirmation hearings will conclude before the Byrd funeral on Friday.
Senators from both parties now are saying openly they expect Kagan to win easy confirmation, though the majority of Republicans are expected to vote against her. Only nine Republicans voted to confirm Justice Sonia Sotomayor, and four of those had announced plans to retire.
The Judiciary Committee is expected to vote on the Kagan nomination in about two weeks, with a vote by the full senate before the August recess.