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Sotomayor, Kagan shift Supreme Court debates to the left

The liberal wing is no longer drowned out by Scalia and his fellow conservatives during oral arguments.

December 26, 2010|By David G. Savage, Washington Bureau

Like the now-retired Stevens, the former Harvard law professor often waits well into the argument before posing a "what if" question. She also deftly plays off points that were raised by her colleagues.

Cool and cerebral, she often cites Kennedy's comments in phrasing questions, seeming to probe for a point of agreement. When Kennedy commented that the judges in the California case may have gone too far in their order, Kagan picked up the point. Perhaps the state should be given as long as five years to resolve its overcrowding problem, not just the two years set by the three-judge panel, she said.

Off the bench, she has warmly praised Roberts, Kennedy and Scalia. As Harvard law dean, Kagan hosted events to honor Scalia and Kennedy, and she was known as a liberal who had good relationships with conservatives on the faculty.

In Washington, her efforts to build friendships with her colleagues have gone beyond the traditional legal events. On one weekend in late October, she joined Scalia at a Virginia gun club to try her hand at skeet shooting. Kagan reports that she wasn't good at it, but is inclined to try again.

In court, she has been comfortable in tweaking Scalia. When he mocked one lawyer's argument in a bank regulatory case, Kagan followed up by observing that "Justice Scalia sort of snidely, but I think accurately," described an earlier ruling he disagreed with.

In Sotomayor's first term, she voted with the liberals in all the cases where the court was closely split along ideological lines, and in her strongest dissent, she faulted the majority for weakening the famous Miranda decision and its rule requiring suspects to be advised of their right to remain silent. Three times this fall, she wrote dissents when the court turned down appeals from prisoners. Kagan joined only one of them.

Kagan has yet to cast a public vote in an important case where the court is divided. It will not be until the spring before it becomes clear whether the reenergized liberals can, at least in some cases, form a new majority.

One thing, however, already is clear. Attorneys can expect to be grilled by conservative and liberal judges for years to come.

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