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Elena Kagan is following the path of every recent Supreme Court nominee in pledging “a fair shake for every American” who comes before the court and stressing her ordinary roots.
The 50-year-old solicitor general is promising “evenhandedness and impartiality” and insisting she will be properly deferential to Congress while safeguarding individuals’ rights.
But as senators start to question her Tuesday, Kagan will be pressed to say which laws passed by Congress demand deference and which may be safely discarded. She’ll be asked when she will vote with the little guy or with the big guy — a point John Roberts, now chief justice, addressed by saying each guy would win, regardless of size, when he deserved to.
Like her predecessors in the witness chair, Kagan is the product of elite schools and has spent the bulk of her adult life at the highest levels of achievement. She has spent little time with the common man or woman, though she may empathize with them.
On Monday, Kagan talked about her immigrant grandparents and said her mother spoke not a word of English until Kagan started school. She twice mentioned she was the head of a law school, but never said it was Harvard.
Kagan was the model of restraint in the choice of words and measured delivery of her opening statement, as if she wanted to convince Republican senators that her deliberate manner would reflect her approach to judging.
She even suggested that she welcomes tough questions, noting the “relentless” questioning she faced from the justices during her six arguments at the high court in the past year.
Democrats and Republicans on the Senate Judiciary Committee promised Kagan she will get difficult queries in the coming days, even though there is little doubt that Democrats have enough votes to confirm her to replace Justice John Paul Stevens.
“It’s not a coronation but a confirmation process,” said Sen. Jeff Sessions of Alabama, the top committee Republican.
The Republican lines of attack were well developed as the hearing began.
Sessions said Kagan had “less real legal experience of any nominee in at least 50 years.” He said her decision to bar military recruiters from Harvard Law School’s career services office was in violation of the law — a legal conclusion disputed by the White House.
Several Republicans also expressed concerns Kagan would become a judicial activist along the lines of Justice Thurgood Marshall, Kagan’s boss when she was a Supreme Court clerk in the late 1980s.
Democrats said they too would focus on judicial activism of the conservative variety. Several Democratic senators complained that Roberts has broken his promise to observe judicial modesty.
They said the Roberts-led court has strayed far beyond what Congress intended when it wrote laws regarding campaign finance, workplace rights and other issues. Last year, Kagan argued in defense of campaign finance laws at the court.
Copyright © 2010 The Associated Press