Dirt fails to stick as Kagan pledges an 'open mind' on Supreme Court

Second woman to be nominated by Barack Obama faces grilling by Senators on abortion, gay rights and gun control
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The Independent US

As her Supreme Court confirmation hearings opened yesterday, Elena Kagan sought to placate Republican critics, endorsing the concept of judicial restraint and advocating a "modest" role for the court.

For the second summer in succession, the US Senate was considering a female nominee to the court and, despite Republican opposition, every sign was that Ms Kagan would come through the process with as few problems as Sonia Sotomayor in July 2009.

The hearings before the Judiciary Committee will last the best part of the week And, if the appearances of Ms Sotomayor and other recent nominees are anything to go by, the occasion will be at least as notable for speechifying by various senators as for any detailed light it throws on the candidate's views on the burning judicial topics of the day.

That, of course, will not prevent Ms Kagan being grilled on sensitive topics, ranging from abortion and gay rights to campaign finance and gun control, when the serious questioning begins today. That last controversy hit the headlines again yesterday when the court struck down the city of Chicago's handgun ban, one of the strictest in the country. The ruling in effect curtails the power of states and municipalities to limit an individual's right to own and carry firearms, as set out by the second amendment of the US constitution.

In her opening statement, Ms Kagan took a careful line on the issue of judicial activism. "Decisions are best made when you have an open mind," she said. "The Supreme Court has responsibility of ensuring our government never oversteps the bounds. But it must also respect the will of the people [as expressed through elected government]."

For all their efforts, Republicans failed to generate much controversy over Ms Kagan, in large part because the news has been dominated by the BP oil spill in the Gulf, and the sacking of General Stanley McChrystal.

There is little doubt she will be confirmed. The Democrats hold a 12 to seven majority on the Judiciary Committee which will conduct the hearings and a 58-41 majority in the Senate. Theoretically, Republicans could use procedural devices to prevent Ms Kagan's nomination coming to the floor. In reality, however, such a drastic move is highly unlikely. Indeed, no Supreme Court candidate has been rejected by the Senate since Robert Bork in 1987, despite today's far more partisan climate on Capitol Hill.

Nor, by the court's standards, are the stakes especially high. Aged 50, Ms Kagan can expect to serve for a quarter of a century but her arrival will not change the balance of the court, where conservatives among the nine justices have a 5-4 majority.

In essence, one liberal – the retiring justice John Paul Stevens, who is 90 – will be replaced by another. Republicans have attempted to portray Ms Kagan as a dangerous left-winger but the evidence is that, while broadly liberal, she is a cautious pragmatist, if anything slightly more centrist in her views than Justice Stevens.

Where Ms Kagan is unusual is that she is the first Supreme Court nominee in 40 years not to have served on the bench. She made her name first as a highly praised dean of Harvard Law School and then as Solicitor-General in the Obama administration.

Indeed, the main point of interest this week will be how much the senators can elicit about how she is likely to rule on particular cases. The answer almost certainly will be not much.

In fact, her non-judicial background is unlikely to be a problem. Some Republicans have argued that Ms Kagan's lack of such experience made her unqualified for the court. Democrats make the opposite argument – that the fact she has not spent her life in a "judicial monastery" is a plus.

Many successful Supreme Court justices had not been judges, Patrick Leahy, the chairman of the Judiciary Committee, declared. "She will be confirmed. How many votes, I don't know, [but] she will get a whole lot," he predicted. If she is confirmed as the 112th justice in US history, Ms Kagan will be only the fourth woman, and the third Jewish-American, to sit on the court.

But in other respects it will become less diverse. Her arrival would mean that all nine justices had attended Ivy League universities; five of them have roots in New York City.

Questions for Kagan - by Archie Bland

Gay rights

When Republicans started looking for evidence of Elena Kagan's views to use against her, the most obvious early contender was a decision in her days at Harvard Law School to bar military recruiters because they discriminated against gay people. That ruling may seem ominous for conservatives, but Kagan has also said that she sees no constitutional right to same-sex marriage, giving gay activists cause for concern as well.


It is always a key issue in nomination battles, which may be one reason Kagan has kept her cards close to her chest. But pro-choice activists see her as a supporter of abortion rights – partly on the basis of legal advice she provided President Bill Clinton – and have lobbied to have their Senate allies push Kagan hard on the subject.

Gun rights

Yesterday's decision to limit the extent to which local laws can control gun ownership underlines the extent to which the right to bear arms remains a key legal battleground. It's a decision that Kagan's previous work suggests she would have opposed, and the National Rifle Association strongly opposes her nomination.

Power of the presidency

After the Bush years, when the White House pushed hard to extend its powers, the extent of the executive's authority has become a highly visible issue. Kagan is thought to be relatively conservative on this point, and has said, for example, that the law allows enemy combatants to be held without trial.

Personal prejudices

Right-wing jurists tend to argue that personal experience has no bearing on decisions; those on the left say that a diverse range of experiences helps a court to make decisions that make sense in the real world. Republican senators are likely to try to paint Kagan, who has taken roughly that line herself in the past, as a woman with a political agenda she wants to impose through the courts.