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U.S. SUPREME COURT: ELENA KAGAN

Opening day of the Elena Kagan Senate confirmation hearing

In her opening remarks to the Judiciary Committee, Supreme Court nominee Kagan vows to work impartially. The U.S. solicitor general and former dean of Harvard Law avoids taking any specific positions on contentious social issues, promising to 'listen hard' and 'work hard,' if confirmed.

June 28, 2010

2:26 p.m. EDT (11:26 a.m. PDT): It may seem incongruous for a foreign jurist to be mentioned at a hearing for someone seeking a place on the U.S. Supreme Court. But like so many of the things being mentioned in the opening statements, this is code.

Sen. Lindsey Graham (R-S.C.) brought up Aharon Barak, former president of the Israeli Supreme Court, whom Kagan has called a hero. Graham and other Republicans use Barak as the example of judicial activism, a Republican anathema.

Barak's name is connected to a host of important actions, including probing corruption and investigating his country's actions in allowing the massacre of refugees in Palestinian camps.

But in many ways, he is comparable to John Marshall, the longest-serving chief justice of the United States who dominated the court in the first third of the 19th century. It was Marshall who established the first great principle of activist judges, the idea of judicial review, and made the court an equal of Congress and executive in the U.S. political pantheon.

Democrats will fight the Barak reference by noting the Israeli jurist has also been praised by conservatives, including Justice Antonin Scalia.

-- Michael Muskal in Los Angeles


2:17 p.m. EDT (11:17 a.m. PDT): Sen. Arlen Specter (D-Pa.), serving out the final months of his fifth term, lamented both the increased ideological tension of the Supreme Court and the declining number of cases it decides to hear.

The court "has become an ideological battleground, and the activism is on both sides," the 80-year-old Specter said in his opening statement of Elena Kagan's confirmation hearing Monday.

Specter said that because Congress has the authority to direct the Supreme Court to hear certain cases, it is fair for senators to ask nominees what kinds of cases they might choose to hear. He called a sharp decline in the number of cases being considered by the Supreme Court now "inappropriate."

Specter lost the Democratic primary in Pennsylvania on May 18. He had been the ranking Republican on the Judiciary Committee until he switched parties in April 2009. Kagan is the 12th nominee to the Supreme Court that Specter has considered in his 30 years in Congress.

-- Michael Memoli in Washington


2:08 p.m. EDT (11:08 a.m. PDT): At the confirmation hearing for Elena Kagan, Arizona Republican Sen. Jon Kyl tried to distinguish between results and impartiality -- political code for the central GOP argument of whether the Supreme Court should be used to remake society.

The Senate Judiciary Committee needs to learn whether Kagan is "a result-oriented nominee or will approach each case impartially on the merits," Kyl said.

For Republicans, the essence of the Supreme Court is its restraint and its focus on judging each case only on the conditions that are presented. Be only an umpire, is the Republican mantra for a top judge.

"Results-oriented" for Republicans means using the case to enshrine an ideological principle already known. The phrase is similar to the use of "activist judges," always a bad thing for those who avoid change.

Politically, the distinction is also part of what Republicans see as an attack on the Obama administration in this midterm election year. President Obama favors a government solution for social problems, such as healthcare, financial regulation and energy, while Republicans argue that such efforts will only grow government and hinder a market-oriented solution.

-- Michael Muskal in Los Angeles


1:47 p.m. EDT (10:47 a.m. PDT): As Sen. Dianne Feinstein (D-Calif.) noted, the Elena Kagan confirmation process has been a "snooze-fest." Chairman Patrick J. Leahy (D-Vt.) even noted that senators Monday have not even been using the full 10 minutes allotted to them for introductory statements. That largely sums up the first hour of proceedings with the Senate Judiciary Committee.

In his statement, Sen. Charles E. Grassley (R-Iowa) focused on Kagan's lack of experience, either as a judge or a practicing lawyer. "Your relatively thin record clearly shows you've been a political lawyer," he said. This echoed remarks by some of his Republican colleagues.

Sen. Russell D. Feingold (D-Wis.), who praised Kagan's credentials, noted that the committee had gone more than a decade before considering a Supreme Court appointment, but now is considering its fourth in five years.

-- Michael Memoli in Washington


1:32 p.m. EDT (10:32 a.m. PDT): California Sen. Dianne Feinstein on Monday took on the GOP's lead argument opposing the confirmation of Elena Kagan, saying that the solicitor general had the qualifications to be the next justice of the Supreme Court, even though Kagan had never before sat as a judge.

Republicans, such as Sen. Jeff Sessions of Alabama in his remarks, are arguing that Kagan's lack of judicial experience is a handicap, but Feinstein, a Democrat, insisted that was no bar and could even help her cope with tough societal issues.

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