WASHINGTON (CN) – Supreme Court nominee Elena Kagan promised to exercise judicial restraint if confirmed as retired Justice John Paul Stevens’ replacement on the bench. “Every judge should be committed to the principle of restraint,” she said Wednesday during her third day of confirmation hearings.
The U.S. solicitor general and President Obama’s pick to replace Stevens told members of the Senate Judiciary Committee that the role of a judge was threefold: to defer to policy-making branches of government, to respect court precedent and to decide cases narrowly, avoiding constitutional questions if possible.
Sen. Sheldon Whitehouse, D-R.I., pointed out that the members of the Supreme Court are not elected. “Who watches the watchmen?” he asked.
Kagan replied that precedent was a method of restraint.
“Precedent is a doctrine of humility and is very much a doctrine of restraint,” she said.
Whitehouse tried, unsuccessfully, to get Kagan to disapprove of the current court’s ruling patterns. He cited decades-old landmark Supreme Court decisions such as Brown v. Board of Education and Roe v. Wade, which were decided unanimously or with large majorities despite their controversial nature, and contrasted them with a recent number of 5-4 decisions split along party lines. He called them the product of “Republican appointees acting together.”
“I do not agree with your characterizations of the current court,” Kagan said. “Every judge or justice has to do what he or she thinks the law requires. The court is served best and our country is served best when people trust the court as an entirely nonpolitical body.”
Some of the toughest questions Kagan fielded during the hearing related to her decision as dean of Harvard Law School to ban the military from recruiting on campus due to its “Don’t ask, don’t tell” policy, which she called “unwise and unjust.”
“It seems to me you were making a political statement,” Sen. Lindsey Graham, R-S.C., said.
“What I was trying to do was, on the one hand, ensure military recruiting and, on the other hand, enforce and defend the school’s antidiscrimination policy,” Kagan said. “I was not making a political statement; I was working as dean of the law school. I was just trying to defend a very longstanding –“
“It would be okay if you were,” Graham interrupted. “I just disagree with you.”
Kagan again defended the decision during questioning by Sen. Orrin Hatch, R-Utah. “You have to admit that the facilities weren’t as available to recruiters,” Hatch said.
“The military recruiters had excellent access to our students,” Kagan said, pointing out that recruitment numbers actually went up during her tenure. “The effects in some ways speak for themselves,” she said.
Senators also repeatedly brought up Kagan’s work as associate counsel for former President Clinton. While working for Clinton, Kagan wrote a memo stating that it would be a “disaster” if an opinion voiced by the American College of Obstetricians and Gynecologists that partial birth abortions were sometimes the “medically best” procedure, posing the least risk to the health of the mother, was not included in a statement issued by the organization.
“You were advocating, as far as I can tell, a broader view of partial birth abortion,” Graham said, adding that he thought it was “disturbing.”
“With respect, senator, it’s not true,” Kagan said. “I had no agenda with respect to this issue. I was at all times trying to further Clinton’s views.”
Hatch labeled the incident a “real politicization of science.”
“There are plenty of doctors in ACOG that do not believe it an essential procedure, but that it is a brutal procedure,” he said. “That bothers me that you opined in that area in that way.”
“There is no way in which I would have or could have intervened with ACOG to change its views,” Kagan said, stating that her primary concern was to make sure the organization’s statement accurately reflected its views.
During a lighter portion of the hearing, Sen. Amy Klobuchar, D-Minn., asked Kagan if being a judge was akin to being an umpire in a baseball game whose role was not to make the rules, but to apply them.
Kagan said the metaphor worked as far as umpires coming on the field without rooting for one team or the other. But she stopped short of characterizing law as a “robotic exercise” involving zero judgment.
“That’s not right, especially at the Supreme Court level, where the hardest cases go,” Kagan said. “It’s law all the way down. It’s about text. It’s about structure. It’s about history. It’s about precedent. You’re looking at law and only at law.”
In response to criticism that she was “too political” for having served on Clinton’s domestic policy counsel, Kagan said, “There are many justices on the court who have worked either for Congress or the executive. Just like all of them have, I would, if fortunate enough to be confirmed, put on that robe and be independent and not work for any political party. The greatness of our judicial system lies in its independence. When you put on the robe, your only master is the rule of law.”
When asked by Sen. Ted Kaufman, D-Del., if she agreed with the belief of Justice Thurgood Marshall, whom she clerked for from 1987 to 1988, that the court existed primarily as a “special place for the disadvantaged,” Kagan said that she agreed the court’s role was to provide a level playing field.
“People might think that the government is favored in the court, but it is anything but,” she said. “Government does have a lot of resources and ability. Every single person that comes before the court has to be treated equally. The greatness of our court system historically has been that we’ve generally gotten it.”
Throughout the hearing, senators thanked her for her continued patience and good humor and praised her for her bright intellect. “I think even the other side would have to admit that you have a wonderfully well-ordered mind,” Sen. Dianne Feinstein, D-Calif., said.
In the hallway during a break, a reporter asked committee chair Sen. Patrick Leahy, D-Vt., if Kagan would be confirmed.
“Yes,” Leahy responded without hesitation. “She will be confirmed. She is a superbly qualified woman.”
If nominated, Kagan will be the fourth female justice to serve on the Supreme Court in U.S. history.