Skip to main content

Senators often talk past Kagan on opening day of confirmation hearing

By Bill Mears, CNN Supreme Court Producer
Click to play
Will Elena Kagan be confirmed?
  • Senators focus on high court as much as nominee on first day of Kagan's hearing
  • Democrats say Supreme Court has shifted to conservative activism
  • Republicans question Kagan's influences
  • Sources close to Kagan say she is eager for questioning that begins Tuesday

Washington (CNN) -- Elena Kagan was the nominee at her confirmation hearing Monday for the Supreme Court, but you would not be faulted for believing the real spotlight was on those not attending-- the conservative members of the bench who drew so much attention from senators on the Judiciary Committee.

Time and again, the lawmakers -- mostly Democrats-- chose to concentrate on the high court's impact on a range of issues -- business disputes, privacy and free speech. They set the tone for the intense questioning of Kagan to follow this week -- probing how the 50-year-old lawyer who has never been a judge would impact the court for perhaps decades to come.

The partisan political aspect of the hearings -- the "advise and consent" role senators play in accordance with constitutional requirements -- will turn on how the court that issues final rulings will decide hot-button cases.

"We have less evidence about what sort of judge you will be than on any nominee in recent memory," said Sen. Herbert Kohl, D-Wisconsin. "Your judicial philosophy is almost invisible to us. We don't have a right to know in advance how you will decide cases, but we do have a right to understand your judicial philosophy."

Of greater interest for many senators was commenting on how the current justices decide the big issues of the day.

A sample:

Video: Kagan faces a jury: The U.S. Senate
Video: Kagan confirmation preview
Video: Kagan promises impartiality

"By acting in such an extreme and unjustified manner, the (high) court badly damaged its own integrity," said Sen. Russ Feingold, D-Wisconsin, of the court's ruling this year on campaign finance reform. "By elevating the rights of corporations over the rights of people, the court damaged our democracy."

Sen. Benjamin Cardin, D-Maryland, cited the retiring Justice John Paul Stevens to attack conservatives on that bench.

"I join him in wondering just how or why those who profess to oppose judicial activism have voiced their support for these Supreme Court decisions in which justices have overturned long-standing precedent and substituted their own legislative voices for Congress," Cardin said.

"For all the talk of balls and strikes,'' said Sen. Sheldon Whitehouse, D-Rhode Island, the high court continually improves "'the strike zone for corporations.'' That was a reference to the 2005 testimony of Chief Justice John Roberts, who compared judges to umpires during his Senate confirmation hearings.

On the other side, some Republicans chose to focus on Kagan's old boss, Justice Thurgood Marshall, whom she served as a law clerk in 1988.

"Justice Marshall's judicial philosophy," said Sen. Jon Kyl, R-Arizona, "was not what I would consider mainstream. As he once explained: 'You do what you think is right and let the law catch up.' He might be the epitome of a results-oriented judge."

Sen. Lindsey Graham, R-South Carolina, singled out Kagan's statement calling former Israeli Supreme Court Chief Judge Aharon Barak her "hero." Barak has been attacked by legal conservatives for what they call his judicial activism.

"Your hero is an interesting guy and you're going to have a lot of explaining to do," Graham told Kagan. "His view is really disturbing but I expect you will have good answers."

Kagan herself tried to stay out of trouble by taking a middle road, declaring her respect for individual liberty championed by conservatives, as well as her respect for precedent, which the political left and right both appreciate -- depending on the issue.

"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," Kagan said in her opening statement. "But the court must also recognize the limits on itself and respect the choices made by the American people."

The real drama of the hearings begins Tuesday with the questioning of the nominee. It will be her responses, and not the speechifying of the senators, that will illuminate Kagan's past record and how strongly she is able to defend it.

Given her lack of judicial experience, and her long resume in two Democratic administrations, senators will want to know if she is about politics, or about the rule of law.

iReporter: "No experience necessary?"

Sources close to her say she is eager and confident to answer her critics, but aware she cannot reveal too much about her views. She said as much Monday, promising only to build upon a lifetime of learning and listening.

"I will make no pledges this week other than this one -- that if confirmed, I will remember and abide by all these lessons," she said. "I will listen hard, to every party before the court and to each of my colleagues. I will work hard."