WASHINGTON – Her confirmation all but assured, Supreme Court nominee Elena Kagan neared the end of a final grueling day of Senate questioning Wednesday, fielding GOP challenges on abortion, gays in the military and other divisive issues while sidestepping Democrats' invitations to blast conservative decisions by the court she's hoping to join.
Kagan, prompted by Democratic supporters on the Senate Judiciary Committee, gave a blunt denunciation of "results-oriented judging," the adjusting of judicial reasoning to fit a preconceived conclusion, but she refused to join them in applying the criticism to the current court under Chief Justice John Roberts. "I'm sure that everybody up there is acting in good faith," she said.
"Solicitor General Kagan will be confirmed," Sen. Patrick Leahy, D-Vt., the panel chairman, confidently declared during a break in the hearings.
Republicans, despairing of their inability to get President Barack Obama's nominee to reveal her legal views or say anything that might threaten her confirmation, acknowledged as much.
"I assume she will be," said Sen. John Cornyn, R-Texas.
Barring an unexpected turn, Kagan will succeed retiring Justice John Paul Stevens and become the fourth woman in the Supreme Court's history. It would be the first time that three of the court's nine justices were women.
Senators were expecting to finish their public questioning of Kagan late Wednesday, but it was unclear in light of planned funeral arrangements for Sen. Robert C. Byrd, D-W.Va., when they might complete the hearings, including testimony from outside witnesses that had been planned for Thursday.
Sen. Jeff Sessions of Alabama, the top Republican on the panel, said Kagan's careful answers had made it difficult to determine whether she would be more like Roberts or Ruth Bader Ginsburg, referring to the conservative chief justice and to President Bill Clinton's nominee to the high court, generally regarded as a member of its liberal wing.
On one controversial matter, Kagan defended her efforts as a domestic policy aide to Clinton to scale back a GOP-proposed ban on a procedure opponents call partial-birth abortion — something she called "an incredibly difficult issue."
The former president, she said, "thought that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman."
Sen. Orrin Hatch, R-Utah, pressed Kagan about a note she wrote saying it would be "a disaster" if the American College of Obstetricians and Gynecologists issued a statement saying there was no case in which the procedure was necessary, and about her intervention to prevent the group from doing so.
She responded that the disaster would have been if the organization's statement didn't reflect its full view that in some instances, the procedure was "medically best."
"This was all done in order to present ... both to the president and to Congress the most accurate understanding of what this important organization of doctors believed," Kagan said.
For the second day in a row, Kagan asserted she would be able to separate her personal and political views from her job as a justice.
"As a judge, you are on nobody's team. As a judge, you are an independent actor," Kagan said.
She also defended her decision as solicitor general not to pursue two cases challenging the constitutionality of the military's ban on openly gay soldiers. Sessions pressed her on that decision, given "your widely publicized opposition to the 'don't ask, don't tell' law" and a statute meant to bolster it.
Kagan said that one of the cases Sessions cited had upheld the law's constitutionality. In the other, after consulting with Pentagon lawyers, she said she made a strategic decision to wait before taking action.
Kagan asserted that in both cases, she had acted "consistently with the responsibility which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy."
Democrats used their time with Kagan largely to criticize a recent string of 5-4 decisions by the court, especially its January ruling that struck down long-standing precedent to say corporations and labor unions were free to spend their own money on political activity.
Sen. Sheldon Whitehouse, D-R.I., said justices named by Republican presidents were "driving the law in a different direction by the narrowest possible margin."
"I want to make it clear that I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do," Kagan said. But she added that she believes the court should seek to make less far-reaching decisions to engender more consensus, which she called "a very good thing for the judicial process and for the country."
"I do believe that one of the benefits of narrow decisions, of approaching one case at a time and in each case trying to think of the narrowest way to decide the case, is to enable consensus," Kagan said.
Whitehouse cited a 9-0 ruling that banned school segregation in 1954 and a 7-2 decision in 1973 that said women have the right to an abortion as examples of far-reaching cases decided by large or unanimous majorities joined by justices appointed by presidents of both parties. He asked what efforts the justices should make to return to a "collegial environment at the court" so controversial rulings are not decided so narrowly.
"Every judge, every justice has to do what he or she thinks is right," Kagan said. "You wouldn't want the judicial process to become in any way a bargaining process," she said, although she added that the court and country are best served when the public "trusts the court as an entirely nonpolitical body."
Responding to Whitehouse, she did cast doubt on a key argument Roberts outlined in the political activity case. In his concurring opinion, the chief justice said legal precedents whose validity is "hotly contested" can be disregarded.
"It should be regarded with some caution," Kagan said of that line of thinking. She said there were "stronger reasons" for overturning precedents, including if they become unworkable, if courts reverse the cases that helped establish them or if new facts make them irrelevant.
Democratic Sen. Arlen Specter of Pennsylvania, thwarted several times in his attempts to get Kagan to say whether she would recommend that the Supreme Court hear specific cases, said he was giving up — and wondered aloud whether there was any way short of opposing her confirmation to get a straight answer.
"It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don't know that it would be useful to pursue these questions any further," Specter said.
(This version CORRECTS 'desegregation' to 'segregation' in reference to 1954 case)
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