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Kagan pledges judicial independence

By the CNN Wire Staff
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Lighter moments from the Kagan hearing
STORY HIGHLIGHTS
  • NEW: Supreme Court nominee Elena Kagan's public hearing concludes
  • NEW: Some senators praise Kagan for her answers and demeanor during hearing
  • Sen. Arlen Specter complains about lack of substance in hearing
  • Kagan stresses judicial independence

Watch gavel-to-gavel coverage of Elena Kagan's confirmation hearings live on CNN TV, CNN.com and on the CNN app for the iPhone.

Washington (CNN) -- Supreme Court nominee Elena Kagan was hit with a blizzard of questions about politically thorny social and economic issues on the third and final day of her part in her Senate confirmation hearing Wednesday.

In keeping with the tradition of other recent high court nominees, the 50-year-old solicitor general repeatedly declined to indicate how she might rule if confirmed, leading one senator to bemoan what many observers now characterize as a confirmation process devoid of substance.

Kagan spent much of her third straight day of hearings portraying herself as someone who would be an independent voice on the high court. She told members of the Senate Judiciary Committee that, if confirmed, she would not be influenced by her previous political positions in the Clinton administration and elsewhere.

"When you get on the bench [and] you put on the robe, your only master is the rule of law," she said, adding that she would be "independent and not favor any political party."

Kagan cited the example of Justice Robert Jackson, a Democrat who served as solicitor general and attorney general during President Franklin Roosevelt's administration. Once appointed to the Supreme Court, "he was as independent as they come," she said.

Democrats were generally effusive in their praise for Kagan. Committee chairman Patrick Leahy, D-Vermont, called her answers "superb" and predicted she would be confirmed.

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"I have appreciated not only your intellect, but also your good humor throughout," Leahy said in concluding the public questioning of Kagan, adding that she answered the senators' questions "more fully than any recent nominee."

Sen. Dianne Feinstein, D-California, highlighted the fact that Kagan would be the fourth woman on the high court.

"You are a wonderful role model for women, and we will forget whether you are a Democrat or a Republican," she said. "You are reasoned. You have a commitment. You have a dedication and a staying power, and you do us all well."

Even conservative Republican Sen. Tom Coburn of Oklahoma was impressed, telling Kagan that hers was the fourth confirmation hearing in which he has participated, "and I think it's been one of the best."

However, the committee's ranking Republican, Sen. Jeff Sessions of Alabama, said he remained unsure of whether he would support Kagan's nomination when the panel votes.

The committee went into a private session with Kagan to discuss her FBI background check, and will hold another session on Thursday to hear from witnesses for and against her nomination. Kagan's role in the hearing ends with the private session Wednesday evening, and she smiled broadly and hugged supporters when Leahy concluded her public hearing.

If confirmed as expected by the 19-member committee and then the full Senate, Kagan would be the 112th Supreme Court justice. Her addition to the high court would mean the nine-member panel would include three women for the first time.

Earlier, Kagan reiterated a consistent theme of her testimony by emphasizing the importance of judicial independence. Kagan declared that "results-oriented judging" is tantamount to picking sides, and that is "the antithesis of what a judge should be doing."

"To be a results-oriented judge is the worst kind of judge you can be," she said.

But Kagan also said she only partly agrees with Chief Justice John Roberts' famous argument -- made during his high court confirmation hearings -- that judges should act like neutral umpires who merely call "balls and strikes."

The analogy is "correct in certain respects, but like all metaphors it does have its limits," she said.

It's correct insofar as a judge shouldn't root for a certain side in a case, she said. "If I want every call to go to the [Philadelphia] Phillies, that's a bad umpire," she said. A judge should be neutral and fair, she said.

Kagan also said it's correct insofar as judges need to know they're not "the most important people" in U.S. democracy. Judges should recognize they have "a limited role," she said.

The analogy, however, fails to the extent that it suggests that rulings on the law are "robotic," she said. It gives the false impression that everything "is clear cut" and "there's no judgment in the process." Cases go to the Supreme Court because they are hotly disputed, she said. "They're not easy calls." They require some judgment and wisdom, she said.

Asked to give her opinion on the large number of recent 5-4 Supreme Court rulings, Kagan said "every judge has to do what he or she thinks the law requires." But "the court is served best and our country is served best when people trust the court as an entirely nonpolitical body."

Judges should "take one case at a time," she said.

In response to scathing Democratic critiques of the high court's 5-4 campaign finance ruling in Citizens United v. Federal Election Commission, Kagan said courts have "neither the competence nor the legitimacy to do fact-finding in the way" that Congress can.

Congressional fact-finding is "very important and courts should defer to it" in most cases, she said.

The January ruling in Citizens United gave big business, unions and nonprofits more power to spend freely in federal elections, threatening a century of government efforts to regulate the power of corporations to bankroll American politics. A number of conservatives praised the ruling as a victory for First Amendment free speech rights; most Democrats blasted it, arguing that it ignored the congressional fact-finding process and will tilt the political landscape in favor of Republicans and traditional GOP allies in the business community.

Asked to comment on the role of the First Amendment and media, Kagan said, "I think people should be able to write anything they want about me, and I don't think I should be able to sue them."

Kagan strongly praised the famous media case New York Times v. Sullivan. There should be "an extremely high bar" for libel cases involving public figures, she said. But "reputational harm is real harm," she added.

Republicans brought up several hot-button social and economic issues, including gays in the military, same-sex marriage, late-term abortions, gun control and the taking of private land for public use.

While refusing to be pinned down on any of them, Kagan once again defended her role in limiting military recruiters at Harvard Law School because of the "don't ask, don't tell" policy, which bars openly gay and lesbian soldiers from military service. Some Republicans have said Kagan, who was the law school dean, sought to treat the military as second-class by denying recruiters access to the campus Office of Career Services and instead requiring them to use a veterans services office.

Kagan said she provided an "equally effective substitute" by requiring military recruiters to use the veterans service office. "I appreciate that reasonable people can disagree about this issue," she said, but the military "had excellent access to our students."

Kagan also said that, as solicitor general, she has acted "consistently with the responsibility ... that I have" to defend current laws, "including 'don't ask, don't tell.' "

Pressed by Sen. Jon Kyl, R-Arizona, on the status of detainees, Kagan said she has "no pre-existing views" on questions relating to habeas corpus rights for prisoners being held at U.S. military bases.

Sen. Arlen Specter, D-Pennsylvania, expressed frustration with what he characterized as a lack of substantive discussions in the hearing.

"I think the commentaries in the media are accurate," Specter said. "They say we haven't had [substantive discussions] here, and I'm inclined to agree with them."

Sen. Lindsey Graham, R-South Carolina, said the confirmation hearings have been "on the margins" better than others in recent history, but "not a lot better."

Kagan opened the day by expressing respect for the notions of judicial restraint and precedent.

The idea of respecting judicial precedent is a "doctrine of humility" that "binds judges" to the law, she said.

A sense of humility is important, she said, because "there is no political accountability [for the Supreme Court] and there ... are precious few ways that the president (or Congress) should interfere with" the work of the court.

CNN's Bill Mears and Alan Silverleib contributed to this report.

 
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