Elena Kagan declined several opportunities to criticize the current Supreme Court on Wednesday, testifying at the third day of confirmation hearings, "I'm sure everyone up there is acting in good faith."
In a lengthy exchange with Sen. Sheldon Whitehouse, Kagan said pointedly she didn't agree with the Rhode Island Democrat's analysis that conservative justices appointed by Republican presidents were "driving the law in a new direction by the narrowest possible margins" in a series of 5-4 rulings.
Later, she sat quietly as Democratic Sens. Ted Kaufman of Delaware and Al Franken of Minnesota vigorously criticized recent court rulings. Both men said they would not ask her to agree with them, and she did not volunteer to do so.
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The exchanges occurred as Kagan returned to the witness chair for another long day of questioning by members of the committee that will vote first on her nomination. She appears well on her way toward confirmation, although it is unclear how many, if any, of the panel's seven Republicans will support her.
While most said they wanted to pose more questions to Kagan, Sen. John Cornyn of Texas told reporters, "I assume she will be confirmed."
Unlike the first two days of the hearings, there were few if any spectators in line to witness a bit of history. Democrats hoped to conclude questioning of President Barack Obama's nominee by day's end.
In something of a jab at her reticence to expand on numerous legal controversies, Sen. Jeff Sessions, R-Ala., said some critics are wondering what she believes and whether she would be more like Chief Justice John Roberts or Justice Ruth Bader Ginsburg.
Ginsburg, appointed by President Bill Clinton, is generally viewed as being a member of the court's liberal wing, cast into the minority on controversial 5-4 rulings.
Whitehouse seemed more concerned with Roberts and the other justices who frequently side with him in closely decided cases.
The Rhode Island Democrat cited a 9-0 ruling that banned school desegregation in 1954 and a 7-2 decision in 1973 that said women have the right to an abortion as examples of far-reaching cases decided by large or unanimous majorities joined by justices appointed by presidents of both parties. By contrast, he said, the current court had overturned precedent in antitrust law, gun ownership and other cases on 5-4 rulings joined only by "Republican appointees."
He asked what efforts the justices should make to return to a "collegial environment at the court" so controversial rulings are not decided so narrowly.
"Every judge, every justice has to do what he or she thinks is right," she said. "You wouldn't want the judicial process to become in any way a bargaining process," she said, although she added that the court and country are best served when the public "trusts the court as an entirely nonpolitical body."
Kagan did cast doubt on a key argument Roberts outlined in a recent case in which the court said corporations and unions are free to spend their own funds on political activity. In a concurring opinion as part of a 5-4 ruling, the chief justice said legal precedents whose validity is a matter of intense dispute can be toppled.
"It should be regarded with some caution," Kagan said of that line of thinking. She said that there were "stronger reasons" for overturning precedents, including if they became unworkable, if courts reverse the cases that helped establish them or if new facts have made them irrelevant.
Kaufman and Franken both joined in criticizing the decision about corporations and political activity.
The Delaware senator said the court's ruling was an example of `results-oriented judging, kind of reaching a decision and then trying to figure out how to make it happen."
Kaufman refrained from asking Kagan to agree, but then asked for an opinion on "results-oriented judging."
She replied, "I think results-oriented judging is pretty much the worst kind of judging there is."
Franken, too, criticized the court's ruling. "If that isn't outcome-oriented, I don't know what is. I'd love to ask you if you agree, but I don't want to force you to criticize your future colleagues."
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