By SHERYL GAY STOLBERG
c.2010 New York Times News Service
WASHINGTON – Elena Kagan vowed Monday that if she is confirmed to the Supreme Court, her approach to judging will be “a modest one” that is “properly deferential” to Congress and the president – remarks intended to quell Republican criticism that she is a partisan who would use the court as an instrument to advance a Democratic agenda.
Addressing senators on the first day of her confirmation hearings, Kagan, the solicitor general, was cautious and measured in her opening remarks. She pledged “even-handedness and impartiality” and promised “a fair shake” for Americans who come before the high court.
Her use of the term “modest” offered the first clue to Kagan’s judicial philosophy in her own words and harks back to a term used by Chief Justice John G. Roberts Jr., who pledged “judicial modesty” during his confirmation hearings in 2005. The question of just what Kagan means by it – and just what, precisely, her judicial philosophy is – will be a core theme of the hearings when senators begin questioning her Tuesday.
“We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us,” Sen. Herb Kohl, D-Wis., told Kagan.
He urged her to engage in “substantive and candid dialogue.”
Republicans spotlighted her lack of judicial experience and sought to portray her as a legal neophyte and a Democratic operative.
“It’s not just that she has never been a judge,” said Sen. Jeff Sessions, the top Republican on the panel. “She has barely practiced law, and not with the intensity and duration from which real understanding occurs.”
Democrats described her as a brilliant thinker with what Sen. Charles E. Schumer of New York called “unprecedented practical experience.” Both sides expect that, barring unforeseen circumstances, Kagan will be confirmed.
A central question in the hearings, which coincided with the final day of the Supreme Court’s term, is how far Kagan will go in offering the kind of candid dialogue senators, especially Republicans, are seeking. In a law review article 15 years ago, she famously complained that Supreme Court confirmation hearings are a “vapid and hollow charade,” and she called for nominees to be more forthcoming. But she offered little hint of how extensively she planned to follow her own advice.
“I will make no pledges this week other than this one – that if confirmed, I will remember and abide by all these lessons,” Kagan said. “I will listen hard, to every party before the court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”