June 28, 2010 / 5:05 AM / 9 years ago

Senate Republicans rap Obama's high-court pick

WASHINGTON (Reuters) - President Barack Obama’s Supreme Court nominee Elena Kagan promised on Monday to take an impartial approach to the law after Republicans criticized her qualifications and objectivity on the first day of her Senate confirmation hearing.

Supreme Court nominee Elena Kagan appears over her own shoulder on a video monitor during her Senate Judiciary Committee confirmation hearing in Washington, June 28, 2010. REUTERS/Jason Reed

Kagan, Obama’s solicitor general and a former Harvard Law School dean, is expected to be confirmed to an ideologically divided Supreme Court next month, but Republicans indicated they would not make it easy.

In opening statements in the Senate Judiciary Committee, they repeatedly raised questions about her lack of experience as a judge and portrayed her as a lawyer more interested in political activism than legal precedents.

“Your relatively thin record clearly shows that you’ve been a political lawyer,” Republican Senator Charles Grassley told Kagan, who sat placidly at the witness table through more than two hours of opening statements.

“A judge needs to be an independent arbiter, not an advocate or rubber-stamp for a political agenda,” he said.

In brief opening testimony, Kagan praised the court and said she would rule impartially and with deference to the wishes of the people and lawmakers.

“I will work hard and I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law,” she said.

Kagan, 50, has served the past year as Obama’s solicitor general, which represents the U.S. government in cases before the court that she now hopes to join.

Kagan said the court must ensure the government never oversteps its bounds, but “must also recognize the limits on itself and respect the choices made by the American people.”

Kagan’s nomination to replace retiring Justice John Paul Stevens has not sparked a political fight, in part because she is not expected to change the court’s fragile ideological balance and in part because she has no judicial record to pick through.

The nomination also has been overshadowed by a heavy crush of political news, including the oil spill in the Gulf of Mexico and last week’s removal of Afghanistan war commander General Stanley McChrystal.


Barring an unexpected gaffe, she appears headed to relatively easy Senate approval before Congress heads for its August vacation. Democrats hold a 58-41 edge in the Senate after the death on Monday of Democratic Senator Robert Byrd at age 92.

If confirmed, Kagan would be Obama’s second high-court appointee, following Sonia Sotomayor, who won Senate confirmation last year in a 68-31 vote, becoming the first Hispanic U.S. Supreme Court justice.

“Ms. Kagan has less real legal experience of any nominee in at least 50 years. It’s not just that she has never been a judge,” said Senator Jeff Sessions, the panel’s top Republican. “She has barely practiced law, and not with the intensity and duration from which real understanding occurs.”

Democrats noted that 41 justices have served on the court without being judges first and said she would bring diversity to a court packed with former judges. But even Democratic Senator Herb Kohl said her record made it more critical to get a sense of her judicial philosophy.

“We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us,” Kohl said.

Both parties are jockeying for an advantage ahead of November congressional elections in which Republicans aim to take control of the House of Representatives and Senate.

Democrats used the hearing to criticize recent 5-4 Supreme Court decisions they said amounted to judicial activism, including Monday’s ruling extending gun rights to every city and state, which could ultimately make it easier for individuals to own handguns.

The court on Monday also rejected an attempt by the federal government to wrest billions of dollars in damages from the tobacco industry, a big victory for cigarette makers.

An earlier decision by the court allowing corporations to make unlimited campaign donations angered Obama.

Democratic Senator Charles Schumer said the “highly fractured” court had been pushed to the right by Chief Justice John Roberts, appointed by former President George W. Bush.

“The rightward shift of the court under Chief Justice Roberts is palpable,” Schumer said. “In decision after decision, special interests are winning out over ordinary citizens.”

Kagan previously served as the first woman dean of Harvard Law School and as an attorney in the Clinton White House. Last week, the American Bar Association, a leading organization of lawyers, gave Kagan its top rating of “well qualified” for the Supreme Court.

Slideshow (9 Images)

The first day of the hearing was spent on opening statements by Kagan and the committee’s 19 senators — 12 Democrats and seven Republicans. Kagan will begin at least two days of answering questions on Tuesday.

Republican Senator Tom Coburn urged her to be forthright in her testimony, noting recent nominees had not given hints of their judicial philosophy in hearings before being confirmed to lifetime appointments.

“It’s obvious that what we’ve heard in the previous hearings are not predictive of the decisions of the nominees,” Coburn said. “Why should we have this dance if we’re not going to find out real answers about real issues about what you really believe?”

Additional reporting by Deborah Charles; editing by Will Dunham

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