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KAGAN'S APPROACH: MODEST

On the first day of hearings, the U.S. Supreme Court nominee offers cautious remarks.

New York Times

WASHINGTON - Elena Kagan vowed Monday that if she was confirmed to the Supreme Court, her approach to judging would be "a modest one" that was "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 "evenhandedness 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, 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 today.

"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." Yet Schumer may have offered the most revealing assessment of the day when he mused that Supreme Court confirmation hearings have "the potential to be like eating spaghetti with a spoon - it's a lot of work, and it's hard to feel satisfied at the end."

Both sides expect that, barring unforeseen circumstances, Kagan will be confirmed. Sen. Orrin G. Hatch, R-Utah, seemed to say as much outright Monday, when he remarked to Kagan, who had appeared before the panel when she was confirmed as solicitor general, that "something tells me this is likely to be your last confirmation hearing."

Kagan began the day with a brief visit in the Oval Office with President Barack Obama, who wished her well, aides said. She arrived at the hearings precisely at 12:30 p.m. to find an array of former students and family members - her brother Irving, a cousin, an aunt and a niece among them - seated behind her in the audience. She spent much of the day wearing a furrowed brow, pursed lips and a slightly uncomfortable expression, betraying little emotion as senators either picked apart her credentials or praised her.

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."

Republicans, though, seemed to suggest they did not believe her. Some pursued a kind of guilt-by-association approach by spotlighting her admiration for liberal judges, including Justice Thurgood Marshall, for whom she clerked.

After Republicans repeatedly called Marshall an activist, Sen. Richard J. Durbin, D-Ill., jumped in to reprimand "those who would disparage" the life work of the justice, who as a civil rights lawyer argued the Brown v. Board of Education case. Marshall's son, a backer of Kagan, was in the audience.

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