Kagan pledges deference to Congress

Supreme Court nominee Elena Kagan pledged Monday to be properly deferential to Congress if confirmed as a justice, while striving "to consider every case impartially, modestly, with commitment to principle and in accordance with law."

In excerpts of remarks prepared for her confirmation hearing, Kagan said the court is responsible for making sure the government does not violate the rights of individuals. "But the court must also recognize the limits on itself and respect the choices made by the American people," she said.

As the opening gavel fell on her nationally televised hearings before the Senate Judiciary Committee, the 50-year-old solicitor general and former Harvard Law School dean appeared on track for confirmation as a result of a Democratic majority on the Judiciary Committee and in the Senate as a whole.

Kagan stopped by the Oval Office of the White House to receive best wishes from President Barack Obama on her way to the hearing. A few moments and little more than a mile distant, she strode with a smile into the committee room and took her place at the witness table - where senatorial ritual then required her to sit for hours while lawmakers delivered prepared speeches from an elevated dais across the room.

"I believe the fair-minded people will find her philosophy well within the legal mainstream," said Sen. Patrick Leahy, D-Vt., the panel's chairman. "I welcome questions but urge senators on both sides to be fair. No one should presume that this intelligent woman who has excelled during every part of her varied and distinguished career, lacks independence."

Moments later, the committee's senior Republican signaled that Kagan can expect tough questioning beginning on Tuesday. "It's not a coronation but a confirmation process," said Sen. Jeff Sessions of Alabama. He said she had "less real legal experience of any nominee in at least 50 years." And he said her decision to bar military recruiters from Harvard Law School's career services office was in violation of the law - a legal conclusion disputed by the White House.

Leahy and Sessions both said they hoped Kagan would answer questions candidly, although the chairman also cautioned, "No senator should seek to impose an ideological litmus test to secure promises of specific outcomes in cases coming before the Supreme Court."

Judging by recent confirmation history, there was little chance that Kagan would run afoul of that admonition. In the past quarter century, most nominees have pledged fealty to the Constitution and legal precedent - and little else - in their efforts to win approval.

Obama nominated Kagan to succeed retiring Justice John Paul Stevens, a frequent dissenter in a string of 5-4 rulings handed down by a conservative majority under Chief Justice John Roberts.

Strikingly there were several such rulings in the hours before the hearing opened. In one, the court struck down part of an anti-fraud law enacted in 2002 in response to scandals involving Enron and other corporations.

In another, a 5-4 majority said the right to bear arms can't be limited by state or local laws any more than by federal legislation.

One Republican on the committee, Sen. Lindsey Graham of South Carolina, said he could say with certainty that Kagan's nomination wouldn't change the balance of power on the court. But in a reference to Obama, he added, "I hope people will understand that elections do matter."

A handful of protesters gathered outside the Senate Hart Office Building across the street from the Capitol, some opposing Kagan's nomination, others expressing unhappiness that Republicans haven't done more to block it.

By midmorning about 200 people had claimed tickets for seats in the hearing room, the first ones arriving as early as 6:30 to line up in the heat.

"The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one," Kagan said in the excerpts released in advance.

In the brief excerpts, she did not expand on her reference to showing proper deference to congressional lawmakers. But numerous Democrats complained that under Roberts the court has strayed far beyond what Congress intended when it wrote laws regarding campaign finance, workplace rights and other issues. In a similar vein, Republicans argue that Obama is determined to turn the court in a more liberal direction.

Several Republicans expressed concerns Kagan would become a judicial activist along the lines of Justice Thurgood Marshall.

Marshall, confirmed in 1967 as the first black justice in history, was a civil rights lawyer best known in his earlier career for successfully arguing the case in which the Supreme Court ruled that segregation of public schools along racial lines was unconstitutional. As a young lawyer, Kagan was one of his clerks at the high court.

In comments earlier on morning television programs, Leahy predicted that Kagan would be cleared with votes to spare. He brushed off GOP questions about her lack of judicial experience, saying there had been many successful justices who had no previous bench time. He cited Earl Warren, Hugo Black and Robert Jackson.

Sessions said he hopes there won't be a filibuster, but said he's concerned that Kagan may be "outside the mainstream" of legal thinking.

Sessions said Republicans have serious questions to resolve about Kagan, including whether she would be too driven by her political views if she were to take a place on the high court bench.

The GOP was set to grill Kagan on controversial issues from guns to abortion to campaign finance, arguing that she'd bring liberal politics and an antimilitary bias to the job of a justice.

One of the issues Republicans have already focused on was her decision, while at Harvard, to bar recruiters from the career services office because the military's policy on homosexuality violated the school's nondiscrimination rules. She was also strongly critical of the "don't ask, don't tell" policy.

The Pentagon said Kagan's stance made Harvard ineligible for federal funding under a law that required schools to give military recruiters the same access as other employers, a different interpretation from Sessions' statement that she had violated the law.

Kagan's swearing-in would mark the first time three women would be on the court at the same time. Justices Ruth Bader Ginsburg and Sotomayor are the other two.

(Copyright 2010 by The Associated Press. All Rights Reserved.)

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