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A Times Editorial

Kagan comes off as competent and reserved

No need to sugarcoat it. Elena Kagan's Supreme Court confirmation hearings were not particularly edifying. There were faint hopes that Kagan, who famously criticized the "vapid" confirmation process in 1995, would bring substance to her answers. Instead she said it would be inappropriate to "provide some kinds of hints" into how she felt about contested legal issues. Kagan then followed her own counsel last week and assiduously shielded her views but came across as smart, proficient in the law and playfully humorous. Nothing has raised serious red flags, and later this month she should be confirmed by the Senate.

Attempts to derail Kagan for her decision as dean of Harvard Law School to temporarily bar the military from official campus recruiting did not resonate. There was nothing new to arise in Kagan's exchanges with Sen. Jeff Sessions, R-Ala., except to watch Sessions throw a fit. Kagan calmly repeated her opposition to the military's "don't ask, don't tell" policy and described her actions as upholding the school's nondiscrimination policy, even as Sessions tried to paint it as the crime of the century.

One of the odder aspects of the hearing was the focus by Republican senators on the judicial philosophy of Thurgood Marshall. Kagan clerked for Marshall, a towering legal mind and civil rights icon, and it seemed at times that he was the one on the hot seat. Republican senators, including Sesssions, Jon Kyl of Arizona, John Cornyn of Texas and Charles Grassley of Iowa suggested that Marshall's approach to judicial decisionmaking was too activist to be in the mainstream of legal thinking. Marshall was confirmed by the Senate by a vote of 69-11 in 1967, but the current crop of Republican senators apparently would not have concurred. Kagan, while defending Marshall, made it clear that she would be her own kind of justice.

Nominees have determined that the best approach to the confirmation hearing is to avoid criticizing the court's precedents. When Kagan was pressed on the court's recent 5-4 ruling on gun rights, she declined to say much beyond asserting that as precedent it is entitled to a high degree of deference. Will Kagan follow the pattern set recently by Chief Justice John Roberts and Justice Sonia Sotomayor, where nominees declare a healthy respect for court precedent but then easily set precedent aside when it doesn't comport with their ideology?

Despite Kagan's stellar resume and the sparsity of her writings that might be objected to by conservatives, Kagan is likely to attract few Republican votes. In the Senate's partisan environment, even someone as qualified as Kagan will just squeeze through. That makes it even more likely that future Supreme Court nominees will continue to offer bland answers during confirmation hearings that provide little insight.

Kagan comes off as competent and reserved 07/05/10 [Last modified: Monday, July 5, 2010 6:04pm]

    

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