By Sheryl Gay Stolberg
Elena Kagan vowed Monday that if she is confirmed to the Supreme Court, her approach to judging will be "a modest one" that is "properly deferential" to Congress and the president -- remarks intended to quell Republican criticism that she is a partisan who would use the court as an instrument to advance a Democratic agenda.
Addressing senators on the first day of her confirmation hearings, Kagan, 50, the solicitor general and former dean of Harvard Law School, was cautious and measured in her opening remarks.
She pledged "even-handedness and impartiality" and promised "a fair shake" for Americans who come before the high court.
Her use of the term "modest" offered the first clue to Kagan's judicial philosophy in her own words and harks back to a term used by Chief Justice John G. Roberts Jr., who pledged "judicial modesty" during his confirmation hearings in 2005. The question of just what Kagan means by it -- and just what, precisely, her judicial philosophy is -- will be a core theme of the hearings when senators begin questioning her on Tuesday.
"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," Sen. Herb Kohl (D., Wis.) told Kagan. He urged her to engage in "substantive and candid dialogue."
Sen. Arlen Specter (D., Pa.), like Kohl, reminded Kagan of her lament in a 1995 article that judicial confirmation hearings had become a charade and urged her to be more forthcoming.
The hearing offers "a unique opportunity to have questions answered which have not been answered in the past," Specter said. He added that he believed it would be fair for the senators to ask the nominee her view on whether the court should take a particular case.
Specter voted against con firming Kagan as solicitor general. But that was before he switched from Republican to Democrat.
This pressure from Democrats on the panel was an exception to a day that unfolded as kind of a set piece, with Democrats and Republicans painting radically different pictures of Kagan. Republicans spotlighted her lack of judicial experience and sought to portray her as a legal neophyte and a Democratic operative, citing her work as a policy adviser to former President Bill Clinton.
"It's not just that she has never been a judge," said Sen. Jeff Sessions, the top Republican on the panel. "She has barely practiced law, and not with the intensity and duration from which real understanding occurs."
Democrats described her as a brilliant thinker with what Sen. Charles E. Schumer of New York called "unprecedented practical experience."
Schumer countered GOP fears of judicial activism by saying that it is the current, conservative-dominated Supreme Court under Chief Justice John Roberts that has overreached, reversing precedents and ignoring the intent of Congress on issues such as campaign finance and workplace rights.
With the death of Sen. Robert Byrd (D., W.Va.), the Democrats control 58 votes, two fewer than needed to fend off a potential, though unlikely, GOP filibuster. But both sides expect that, barring unforeseen circumstances, Kagan will be confirmed. Sen. Orrin G. Hatch (R., Utah) seemed to say as much outright Monday, when he remarked to Kagan, who had appeared before the panel when she was confirmed as solicitor general, that "something tells me this is likely to be your last confirmation hearing."
Kagan began the day with a brief visit in the Oval Office with President Obama, who wished her well, aides said.
She arrived at the hearings precisely at 12:30 p.m. to find an array of former students and family members --her brother Irving, a cousin, an aunt and a niece among them -- seated behind her in the audience.
She spent much of the day wearing a furrowed brow, pursed lips and a slightly uncomfortable expression, betraying little emotion as senators either picked apart her credentials or praised her.
But she did brighten on occasion and cracked a wide smile when Sen. Lindsey Graham (R., S.C.) welcomed her by saying, "I hope you somewhat enjoy it. I think you will."
Graham may be Kagan's one Republican friend on the Judiciary Committee; he is the only member of his party on the panel who voted to confirm Justice Sonia Sotomayor last year.
Graham reminded the panel, and all Americans listening, that Kagan has drawn the endorsement of some notable conservatives in the legal world, including Kenneth W.
Starr, the special prosecutor who investigated her former boss, Clinton. And he praised Kagan's stance on a case as solicitor general, advocating limits on the habeas corpus rights of military detainees.
"On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country is facing, about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting a war," Graham said."So you, in my view, have a potential teaching opportunity, even though you've never been a judge, because you've represented this country as solicitor general at a time of war."
A central question in the hearings, which coincided with the final day of the Supreme Court's term, is how far Kagan will go in offering the kind of candid dialogue senators, especially Republicans, are seeking.
As she was reminded, in her law review article 15 years ago she complained that Supreme Court confirmation hearings had become a "vapid and hollow charade" and called for nominees to be more forthcoming.
But she offered little hint Monday of how extensively she planned to follow her own advice, beyond saying she would strive to emulate retiring Justice John Paul Stevens -- the man she's been chosen to succeed -- by "listening to each party with a mind as open as his ... to render impartial justice."
Republicans, though, seemed to suggest they did not believe her. Some pursued a kind of guilt-by-association approach, trying to brand Kagan a judicial activist by spotlighting her admiration for liberal judges including Justice Thurgood Marshall, for whom she clerked.
After Republicans characterized Marshall's views as out of the mainstream, Sen.
Richard J. Durbin (D., Ill.) jumped in to reprimand "those who would disparage" the lifework of the justice best known for his work as a civil rights lawyer arguing the Brown v. Board of Education case.
Marshall's son was in the audience, a backer of Kagan.
Delaware Sen. Ted KAUFMAN, a Democrat, said, "As senators, I believe we have an obligation not to base our decision on empty political slogans or on charges of guilt-by- association or on any litmus test."
KAUFMAN said he "could not disagree more" with concerns expressed by some Republicans that Kagan has never been a judge. He named past justices including the late Chief Justice William Rehnquist, who came from nonjudicial backgrounds and said they had had distinguished tenures on the court.
"General Kagan, I am genuinely heartened by what you would bring to the court based on your experience working in all three branches of government and the skills you developed running a complex institution, like the Harvard Law School, and, yes, the prospect that your being the fourth woman to serve on our nation's highest court."