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On Day 3, Kagan refuses to criticize Roberts court

- Associated Press - Wednesday, June 30, 2010

WASHINGTON (AP) — Elena Kagan declined an invitation to criticize the current Supreme Court on Wednesday, testifying at the third day of her confirmation hearings, "I'm sure everyone up there is acting in good faith."

In a lengthy exchange with Sen. Sheldon Whitehouse, Miss Kagan said pointedly she didn't agree with the Rhode Island Democrat's analysis that 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.

The exchange occurred as Miss Kagan returned to the witness chair for another long day of questioning by members of the committee that will vote first on her nomination for the high court. 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.

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 Obama's nominee by day's end.

"I do hope we can learn more about the nominee," said Sen. Jeff Sessions, of Alabama, the panel's senior Republican. "We see her gifts and graces, in many ways those are revealed in her humor and her knowledge," he said.

In something of a jab at her reticence to expand on numerous legal controversies, he said some critics are wondering what she believes and "whether you would be more like John Roberts and Ruth Bader Ginsburg."

Justice Ginsburg, appointed by President Bill Clinton, is generally viewed as being a member of the court's liberal wing, cast into the minority on a series of controversial 5-4 rulings.

Mr. Whitehouse seemed more concerned with Justice 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," Miss Kagan 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."

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