- The Washington Times - Wednesday, June 30, 2010

Supreme Court nominee Elena Kagan on Wednesday declined an invitation from Senate Democrats to portray the current high court as partisan, dismissing concerns that a spate of 5-4 decisions is eroding important legal precedents.

Sen. Sheldon Whitehouse, Rhode Island Democrat, questioning Ms. Kagan during the third day of her confirmation hearing, asked if the conservative-leaning court lead by Chief Justice John G. Roberts should do more to fashion more moderate decisions that gain a greater majority on the court.

“If the court were to reach beyond the group of five that has driven so many of these recent decisions, they would be less able to move the law as dramatically as they have,” Mr. Whitehouse said.

Ms. Kagan answered that she didn’t agree with the senator’s characterizations of the current court.

“I think that that would be inappropriate for me to do,” Ms. Kagan told the Senate Judiciary Committee. “I’m sure that everybody up there is acting in good faith.”

Ms. Kagan added that narrow decisions can benefit the court because they “enable consensus.”

“And consensus is, in general, a very good thing for the judicial process and for the country,” she said.

Republicans on the panel expressed some frustration with the nominee’s refusal to offer more insights about her own opinions on a number of major issues. Sen. Jeff Sessions of Alabama, the committee’s top Republican, accused her of not being forthcoming in her answers.

“Critics who are saying, ‘Who is this nominee? Exactly what do you believe?’ might find it from the testimony difficult to know if, Ms. Kagan, whether you’d be more like John Roberts or more like [liberal Justice] Ruth Bader Ginsburg?” he said.

Despite Mr. Sessions’ concerns, Ms. Kagan, the Obama administration’s solicitor general, appeared on track to earn confirmation from the Democratic-led Senate later this summer.

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