SPIN METER

What happened to the Kagan standard?

[July 01, 2010]  WASHINGTON (AP) -- Elena Kagan declined to discuss her passions, demurred when asked anything that might tip her hand on the Supreme Court and invoked her right to remain inscrutable even on cases buried in the past.

In short, Kagan did her best to ensure her high court nomination hearing was just the kind of benign event she criticized years ago for lacking "seriousness and substance."

Her dodges over two days of questioning prompted chuckles in the Senate Judiciary Committee as members, keenly aware of what she wrote in 1995, watched her rhetorical dances.

But the evasive maneuvers created frustration, too.

"Perhaps you haven't answered much of anything," snapped Sen. Arlen Specter of Pennsylvania, one of her most persistent -- and persistently thwarted -- questioners.

After another Kagan sidestep, Sen. Herb Kohl of Wisconsin could only manage: "My, oh my, oh my. All right. Let's move on."

And those were Democrats.

Kagan's comportment was in keeping with past nominees, whether liberal or conservative, who stuck to truisms about the impartial judiciary no matter how hard senators tried to smoke them out on how they would lean on matters before the court.

But she demanded a higher standard in a 1995 book review when she wrote, "When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."

She says now, "It just feels a lot different from here than it felt from back there." By back there, she meant where she once sat as a Judiciary Committee staffer witnessing the confirmation hearing for Judge Ruth Bader Ginsburg.

Some episodes from Kagan's questioning this week:

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PASSIONS:

Kagan declined to talk about what she cares deeply about, other than impartial justice, when Kohl cited justices who were known for civil rights and women's rights.

"I'm sure you're a woman of passion," he said. "Where are your passions?"

"I think I will take this one case at a time if I'm a judge," she replied blandly. "I think it would, you know, not be right for a judge to come in saying, 'Oh, I have a passion for this and that and so I'm going to, you know, rule in a certain way with regard to that passion.'"

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IDEOLOGY

Kagan was asked about the characterization of her by Ron Klain, a friend and fellow veteran of the Clinton administration, as a "legal progressive."

She refused to agree or disagree with that assessment and said "people should be allowed to label themselves." Then she resisted doing so, while allowing, "My political views are generally progressive, generally."

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COURT'S DIRECTION

Kohl quoted her as writing in 1995 that "It is a fair question to ask a nominee in what direction would you move the court."

"Well, it might be a fair question," Kagan said to laughs.

Period.

"All right," said Kohl. "Let's move on. "

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MARRIAGE

"I'm only seeking your opinion, because I know there might be cases coming down the road," said GOP Sen. Charles Grassley of Iowa. "Do you believe that marriage is a question reserved for states to decide?" He was attempting indirectly to sound her out about states that sanction or ban gay marriage.

Kagan: "There is, of course, a case coming down the road, and I want to be extremely careful about this question and not to in any way prejudge any case that might come before me."

Grassley: "That's your right. So you don't want to say any more. Is that what you're saying?

Kagan: "I think I'll leave it there."

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COURT BALANCE

Senators wanted to know which justice now on the court she is most like -- a way, of course, of divining how she might operate.

No dice.

Kagan safely praised the retired justice she has been nominated to replace, John Paul Stevens, and said: "I think it would be just a bad idea for me to talk about current justices. And I've expressed, you know, admiration for many of them."

Even exploring why she wants to be a justice proved problematic. A politician's standard reply -- redressing wrongs, advancing freedoms -- would open any nominee up to accusations of judicial activism.

"What motivates me," she said, "is the opportunity to safeguard the rule of law."

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KAGAN STANDARD

Specter was pointed in reminding the nominee of "the Kagan doctrine of answering the substantive question," and called her short on it.

Rather than asking how she might rule on certain cases, he probed whether she would recommend that the Supreme Court hear them at all. He also sought insight on what tests she would apply generally in deciding whether a case should be heard.

"I've not read the petitions," she said of the specific cases, one -- dealing with Holocaust victims -- that involved her as President Barack Obama's solicitor general. "I've not read the briefs in the way that I would as a judge."

"I'll move on," Specter said impatiently. "You've had a lot of time to take a look at that. We met weeks ago. I sent you a letter. But apparently I'm not going to get an answer there either."

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BUSH v. GORE

Conceding Kagan won't comment on cases likely to come before her, Kohl asked about a case "the Supreme Court will certainly never see again," the split decision that broke an impasse over the 2000 election result and made Republican George W. Bush the president.

Kagan wasn't going anywhere near that politically charged matter. "I would try to consider it," she said, "in an appropriate way."

[Associated Press; By CALVIN WOODWARD]

Associated Press writer Nancy Benac contributed to this report.

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