June 30th, 2010
03:00 PM ET
4 years ago

Kagan pledges judicial independence

Elena Kagan testified Wednesday before the Senate.
Elena Kagan testified Wednesday before the Senate.

Washington (CNN) – Supreme Court nominee Elena Kagan was hit with a blizzard of questions about politically thorny social and economic issues in her Senate confirmation hearings Wednesday.

In keeping with the tradition of other recent high court nominees, however, the 50-year-old solicitor general repeatedly declined to indicate how she might rule if approved, leading one senator to bemoan what many observers now characterize as a confirmation process devoid of substance.

Kagan spent much of the third and likely final day of hearings portraying herself as someone who would be an independent voice on the high court. She told members of the Senate Judiciary Committee that, if confirmed, she will not be influenced by her previous political positions in the Clinton administration and elsewhere.

Read live updates on the Kagan hearings here.

"When you get on the bench (and) you put on the robe, your only master is the rule of law," she said. She said she would be "independent and not favor any political party."

Kagan cited the example of Justice Robert Jackson, a Democrat who served as solicitor general and attorney general during President Franklin Roosevelt's administration. Once appointed to the Supreme Court, "he was as independent as they come," she said.

Democrats were generally effusive in their praise for Kagan. Committeechairman Patrick Leahy, D-Vermont, called her answers "superb" and predicted she would be confirmed.

Sen. Dianne Feinstein, D-California, highlighted the fact that Kagan would be the fourth woman on the high court.

"You are a wonderful role model for women, and we will forget whether you are a Democrat or a Republican," she said. "You are reasoned. You have a commitment. You have a dedication and a staying power, and you do us all well."

As part of her emphasis on judicial independence, Kagan declared that "results-oriented judging" is tantamount to picking sides, and that is "the antithesis of what a judge should be doing."

"To be a results-oriented judge is the worst kind of judge you can be," she said.

But Kagan also said she only partly agrees with Chief Justice John Roberts' famous argument - made during his high court confirmation hearings - that judges should act like neutral umpires who merely call "balls and strikes."

The analogy is "correct in certain respects, but like all metaphors it does have its limits," she said.

It's correct insofar as a judge shouldn't root for a certain side in a case, she said. "If I want every call to go to the (Philadelphia) Phillies, that's a bad umpire," she said. A judge should be neutral and fair, she said.

Kagan also said it's correct insofar as judges need to know they're not "the most important people" in U.S. democracy. Judges should recognize they have "a limited role," she said.

The analogy, however, fails to the extent that it suggests that rulings on the law are "robotic," she said. It gives the false impression that everything "is clear cut" and "there's no judgment in the process." Cases go to the Supreme Court because they are hotly disputed, she said. "They're not easy calls." They require some "judgment" and "wisdom."

Asked to give her opinion on the large number of recent 5-4 Supreme Court rulings, Kagan said "every judge has to do what he or she thinks the law requires." But "the court is served best and our country is served best when people trust the court as an entirely nonpolitical body."

Judges should "take one case at a time," she said.

In response to scathing Democratic critiques of the high court's 5-4 campaign finance ruling in Citizens United v. Federal Election Commission, Kagan said courts have "neither the competence nor the legitimacy to do fact-finding in the way" that Congress can.

Congressional fact finding is "very important and courts should defer to it" in most cases, she said.

The January ruling in Citizens United gave big business, unions and nonprofits more power to spend freely in federal elections, threatening a century of government efforts to regulate the power of corporations to bankroll American politics. A number of conservatives praised the ruling as a victory for First Amendment free speech rights; most Democrats blasted it, arguing that it ignored the congressional fact-finding process and will tilt the political landscape in favor of Republicans and traditional GOP allies in the business community.

Asked to comment on the role of the First Amendment and media, Kagan said, "I think people should be able to write anything they want about me, and I don't think I should be able to sue them."

Kagan strongly praised the famous media case New York Times v. Sullivan. There should be "an extremely high bar" for libel cases involving public figures, she said. But "reputational harm is real harm," she said.

Republicans brought up several hot-button social and economic issues, including gays in the military, same-sex marriage, late-term abortions, gun control and the taking of private land for public use.

While refusing to be pinned down on any of them, Kagan once again defended her role in limiting military recruiters at Harvard Law School because of the "don't ask, don't tell" policy, which bars openly gay and lesbian soldiers from military service. Some Republicans have said Kagan, who was the law school dean, sought to treat the military as second class by denying recruiters access to the campus Office of Career Services and instead requiring them to use a veterans services office.

Kagan insisted she provided an "equally effective substitute" by requiring military recruiters to use the veterans service office. "I appreciate that reasonable people can disagree about this issue," she said, but the military "had excellent access to our students."

Kagan also asserted that, as solicitor general, she has acted "consistently with the responsibility ... that I have" to defend current laws, "including 'don't ask, don't tell.'"

Sen. Arlen Specter, D-Pennsylvania, expressed frustration with what he characterized as a lack of substantive discussions in the hearing.

"I think the commentaries in the media are accurate," Specter said. "They say we haven't had (substantive discussions) here, and I'm inclined to agree with them."

Kagan opened the day by expressing respect for the notions of judicial restraint and precedent.

The idea of respecting judicial precedent is a "doctrine of humility" that "binds judges" to the law, she said.

A sense of humility is important, she said, because "there is no political accountability (for the Supreme Court) and there ... are precious few ways that the president (or Congress) should interfere with" the work of the Court.

The Judiciary Committee was scheduled go into closed session later Wednesday in order to discuss Kagan's FBI background check.

If confirmed as expected by the 19-member committee and then the full Senate, Kagan would be the 112th Supreme Court justice.

- CNN's Bill Mears and Alan Silverleib contributed to this report.


Filed under: Elena Kagan • Supreme Court
soundoff (24 Responses)
  1. david thomas

    After Justice Alito and his 19th century world view, Ms. Kagan is a breath of fresh air and realism. We need her and she should be confirmed.

    June 30, 2010 03:05 pm at 3:05 pm |
  2. sonny chapman

    Doesn't Jeff Sessions remind you of George Wallace ?

    June 30, 2010 03:05 pm at 3:05 pm |
  3. KateHikes

    Hah! How can you be independent in any respect if your first loyalty is to I$rael and other conniving yids? Time to take back the JEWdicial system, America!

    June 30, 2010 03:08 pm at 3:08 pm |
  4. Conservativesaredownrightbraindead

    Republicans always talk about how inept government is - then they get elected and PROVE it. Sorry to see you Mr. Bennett –the crazies have taken over your party much to the detriment of our country's future and the world's future.

    June 30, 2010 03:25 pm at 3:25 pm |
  5. Fed Up

    She's taking the route of her predecessors – answer no questions. The confirmation hearings are nothing but a waste of time and money. There are more important things going on in this world than someone evading every question. Why bother? Just appoint someone and make a 10 year term limit.

    June 30, 2010 03:29 pm at 3:29 pm |
  6. Who Cares?

    Why not say to Sessions :

    "I promise to take my example from your hero Chief Justice Roberts and not legislate from the bench to a higher degree than him."

    My Lord I would love to see Sessions choke that down.

    June 30, 2010 03:32 pm at 3:32 pm |
  7. Angus McDugan

    Just like Sonya did in her hearings regarding the 2nd amendment. Just like Obama did regarding transparency.

    They will say anything to get what they want.

    June 30, 2010 03:33 pm at 3:33 pm |
  8. The reality is...

    Sen. Arlen Specter asked Kagans views on using foreign or international law or decisions to interpret our Constitution and laws. She wrote in reply that she approves using "reasonable foreign law arguments." The fact is, the U.S. Constitution states our judges "shall be bound" by "the Constitution, and the laws of the United States which shall be made in pursuance thereof." This shows how little she knows about the Constitution or how little she cares.

    June 30, 2010 03:34 pm at 3:34 pm |
  9. Rickster

    Kagan is the posterchild for why this country is going rapidly downhill.

    June 30, 2010 03:35 pm at 3:35 pm |
  10. Augsbee

    Please, this is about Promises, promises, give me the lucrative job.

    She has no idea what it feels like to work the bench, to be confronted with decision making on a daily basis, based on the Law and not on her beliefs, habits, dislikes/likes, she didn't even get a chance to learn, practice separating herself from cases that came before her because she's not a judge.

    Sorry, she's no Judge Sotomayor who worked her way up to the Supreme Court and understands all levels of law, cases, people.

    She's the Chef that's never cooked.

    June 30, 2010 03:37 pm at 3:37 pm |
  11. waheid

    Well, if our esteemed senators had nothing substantive to discuss, why did they take so long to say what they had to say? From what I saw, the purpose of the hearing was to give various senators an opportunity to make a speech or, in the case of Sen. Sessions, to demonstrate his abysmal stupidity. It’s no wonder that the public holds the Congress in such low regard. It appears to me that Ms. Kagan is better qualified to be an Associate Justice of the Supreme Court than most of her inquisitors are qualified to be Senators.

    June 30, 2010 03:52 pm at 3:52 pm |
  12. SD Kevin

    So far, I like her. However, I think it's really sad that judicial candidates of any political leaning can't come right out and state their beliefs without being labeled at best inappropriate for the job and at worst a left- or right-wing nut job. So she leans liberal. It doesn't mean she's necessarily gonna judge that way. Sandra Day O'Connor and David Souter certainly didn't judge in line with their leanings.

    June 30, 2010 03:53 pm at 3:53 pm |
  13. cliff

    She will say anything to get appointed.

    No qualifications.
    Staunch liberal.
    Own agenda.
    Relys on INTERNATIONAL law and not OUR Constitution.

    But...what would you expect from the loser in the oval office?

    June 30, 2010 03:56 pm at 3:56 pm |
  14. Sniffit

    Retarded. How she would rule on a given set of hypothetical facts is NOT the test, particularly in light of the fact that sets of hypothetical facts are NEVER as complex as real world sets of facts...not to mention ALWAYS carefully chosen to be akin to asking the witness "have you stopped beating your wife?" Get it straight. Criticizing the process as devoid of meaning or substance because you can't give the nomionee a standardized set of hypotheticals like some errant law school exam is a complete and utter mischaracterization of the process itself. These people, at the same time they want her to be showing "judicial independence" are asking her to confirm whether she would rule the way they want her to on a given issue? It's blatantly hypocritical. The process is devoid of meaning and substance because the Senators do it wrong, plain and simple. Test her knowledge. Go over her background, education, experience and training. Test her independence and carefulness of thought and her intellectual honesty and objectivity. Go over some of her basic beliefs about the meaning of the Constitution's provisions and case precedent. But DON'T ask "would you rule the way I and my constituents want you to rule on this issue based on this skewed set of hypothetical facts?" just to generate a pretense for grandstanding on that issue. It's disgusting partisan political hackery and makes a mockery of what should be a fairly straight forward confirmation process.

    June 30, 2010 03:58 pm at 3:58 pm |
  15. normajean

    What a wonderful breath of fresh air Supreme Court nominee Elena Kagan brings to a roomful of stodgy old mummies.With a ready smile,a touch of humor she brightened the complexion of an otherwise heavy question and answer session.This woman, only one of MANY past nominees without previous judicial experience, has a world of knowledge and people experience that should make her a more than suitable candidate for this position because she brings a whole different air of true worldliness and understanding with her and yet the obvious ability to be a cohesive part of the Court system.

    June 30, 2010 04:01 pm at 4:01 pm |
  16. MatthewDetroit

    That is a bold face lie.

    Sotomayor said the exact same thing one year ago.
    She refused to follow the constitution now and voted against the second amendment 2 days ago.

    Kagan is the same liar just a different day and year.

    She is not independent.
    She can not think independently and WILL NOT follow the law.
    She is going to do what she feels and that is wrong.

    June 30, 2010 04:03 pm at 4:03 pm |
  17. gt

    i hope she never gets scolded by obama , like when he tried to shake down the judges at the last state of the union address..

    June 30, 2010 04:05 pm at 4:05 pm |
  18. Cody

    Yeah, just like the weaselly Roberts and Alito.

    June 30, 2010 04:06 pm at 4:06 pm |
  19. Henry Miller, Libertarian

    "Kagan pledges judicial independence."

    Of course she does–it's the only way she'll get the job.

    Frankly, I don't believe it. Two Democratic Presidents have given her jobs, and they wouldn't have done that if she hadn't passed their ideology test.

    The truth of the matter is that no one knows enough about Kagan to trust her.

    June 30, 2010 04:21 pm at 4:21 pm |
  20. D.

    I can't wait o see the official photo with the three female Justices in my lifetime. Then I want a personalized autograph of the previous Justice and then the current three: Oh What A Historical Day.

    June 30, 2010 04:22 pm at 4:22 pm |
  21. Claudia, Houston, Tx

    Larry King announced he will no longer host LKL, they should have asked Kagan how she felt about that considering that most of these judicial hearings aren't substantive. However, it does give us a look at how pompus most of these senators are in Washington, like Senator Colburn, what a jerk.

    June 30, 2010 04:24 pm at 4:24 pm |
  22. perryrants

    it is quite horrific to know that a person being interviewd for a LIFE long job DOES NOT have to answer a "what if "question.

    ALL my interviews had at least one "what you do" question.

    the only difference between america and a third world country is that our political corruption is better hidden.

    June 30, 2010 04:24 pm at 4:24 pm |
  23. Paul

    Let me get the Foxnews types started:

    You know who else seemed a like a perfectly qualified, well-spoken, reasonable judge? Hitler!!!!!

    There. You're welcome. For the record, we will also look for comments like "Obama is a traitor" with clever misspellings of Obama's name earning bonus points, and "Pelosi is a war criminal."

    Go ahead. Your turn.

    June 30, 2010 04:29 pm at 4:29 pm |
  24. ib

    Sure; if you believe that I have ocean front beach property to sell you located in WVa.

    June 30, 2010 04:29 pm at 4:29 pm |