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Supreme Court nominee Elena Kagan today continued what appears to be a steady march to confirmation. She easily fielded questions from senators, confidently discussing legal principles, and at the same time, declining to give any hint of how she would rule on or even approach most issues.
In a few minutes, we'll hear from the Democratic senator running the proceedings, Judiciary Committee Chairman Patrick Leahy, but first NPR legal affairs correspondent Nina Totenberg reports on today's hearing.
NINA TOTENBERG: At times today, Chief Justice John Roberts seemed to be as much a presence in the hearing room as Elena Kagan. Early this morning, Democratic Senator Amy Klobuchar asked Kagan if she agreed with Roberts' statement at his confirmation hearing: The 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 the judges, like umpires, should remember they're not the most important people on a field. They should understand their role is restricted in our democratic system, but Kagan added there are limits to the analogy.
ELENA KAGAN: 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.
TOTENBERG: But being a judge does involve making judgments, she said, adding that even though these may be close calls, they're still based on law.
KAGAN: You're looking at law and only at law, not your political preferences, not your personal preferences. But we do know that not every case is decided nine-zero. And that's not because anybody is acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree.
TOTENBERG: 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'd measure them. That was extremely frustrating to Republican senators and even some Democrats.
Arizona Republican Jon Kyl grew increasingly angry. Finally, telling Kagan...
JON KYL: We don't have a lot of time, and I'm going to pretend like I'm a Supreme Court justice for 14 minutes and you're still a solicitor general and I will interrupt you if I think we need to move on.
TOTENBERG: And Democrat Arlen Specter of Pennsylvania had this exchange with the nominee.
ARLEN SPECTER: The kinds of questions that I have just raised, you wouldn't answer anything. And perhaps you haven't answered.
KAGAN: Well, Senator Specter, 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, notwithstanding that that person knows that that test has been subject to serious criticism.
TOTENBERG: The question, said Specter, is where does the Senate go from here? He told Kagan she'd taken a path followed ever since the failed 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: His concurring opinion in Citizens United, which is a repudiation of everything he testified to, just diametrically opposed.
TOTENBERG: The death of Senator Robert Byrd has thrown a monkey wrench into the hearing's schedule with events honoring Byrd taking place here in Washington and in West Virginia tomorrow and Friday. That will cut into the daytime hours the Judiciary Committee can operate, so witnesses for and against the nominee are scheduled to begin testifying late tomorrow afternoon, and they will continue late into the evening, if necessary, so that the Kagan confirmation hearing will conclude before the Byrd funeral on Friday.
Nina Totenberg, NPR News, Washington.
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