Bipartisan Agreement That Elena Kagan ‘Will Be Confirmed’
July 1, 2010 - 4:05 AMRepublicans are showing little appetite for a long-shot filibuster attempt after sparring with Supreme Court nominee Elena Kagan over abortion, homosexuals in the military and other divisive issues.
"Solicitor General Kagan will be confirmed," Sen. Patrick Leahy, D-Vt., confidently predicted as the Senate Judiciary Committee wrapped up its examination of President Barack Obama's high court pick.
Barring an unexpected turn, Kagan will succeed retiring Justice John Paul Stevens and become the fourth female justice in the Supreme Court's history. It would be the first time that three of the court's nine justices were women.
Sen. Jon Kyl of Arizona, the Senate's No. 2 Republican, called a filibuster of Kagan "highly unlikely." And asked outright whether Kagan was going to win confirmation, another Judiciary Committee Republican, Sen. John Cornyn of Texas, replied, "I assume she will be."
Kagan, 50, spent her last day before the committee Wednesday trying to reassure conservatives that she would be able to separate her personal and political views from a job as a justice on the ideologically split Supreme Court.
"Every judge has to do what he or she thinks the law requires," she said. "But on the other hand, there's no question that the court is served best and our country is served best when people trust the court as an entirely nonpolitical body."
She later added: "As a judge, you are on nobody's team. As a judge, you are an independent actor."
Republicans still weren't convinced, although her confirmation would not change the composition of the court of four liberals, four conservatives and swing vote Justice Anthony Kennedy.
But Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican, said Kagan's careful answers during the hearings had made it difficult to determine whether she would be more like John Roberts or Ruth Bader Ginsburg, referring to the conservative chief justice and to President Bill Clinton's nominee to the high court, regarded as part of the court's liberal wing.
Democrats hope Kagan will be more like Stevens, known as a strong liberal voice who was able to swing high court votes his way. However, Kagan's writings in support of the power of the executive branch and her service in the Clinton and Obama administrations could lead her to side more often with the president than Stevens did.
Kagan, prompted by Democratic supporters on the Judiciary Committee, bluntly denounced "results-oriented judging" -- the adjusting of judicial reasoning to fit a preconceived conclusion. But she refused to join them in applying the criticism to the current court under Roberts.
"I'm sure that everybody up there is acting in good faith," she said.
Senators finished their public questioning of Kagan on Wednesday, but the confirmation hearing will not wrap until late Thursday with testimony from outside witnesses. The delay is because of planned Senate tributes to the late Sen. Robert C. Byrd, D-W.Va., whose body will lie in repose in the Senate chamber.
Once the public witnesses finish, Leahy will set a confirmation vote for Kagan in the full Judiciary Committee, where Democrats hold a 12-7 advantage over the Republicans.
The full Senate, where Democrats control 58 votes to the Republicans' 41, is likely to confirm the nomination before leaving for its August recess.
Republicans who are expected to oppose -- but not block -- Kagan's appointment even gave her some words of praise at the end.
"I think you've acquitted yourself very well for the last several days," Sen. Lindsey Graham, R-S.C., said.
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