Supreme Court Nominee Tiptoes Political Mine Field

Published June 30, 2010

WASHINGTON (AP) — President Barack Obama's Supreme Court nominee has fenced deftly with her Republican critics, cracked jokes to ease the tension and won praise from Democrats as she moves closer to becoming the fourth woman to serve on the country's highest court.

Elena Kagan was to return Wednesday for a third day of confirmation hearings before a divided Senate panel that must approve her lifetime appointment.

Minority Republicans were intent Tuesday on portraying Kagan as too liberal and inexperienced — having never been a judge — to serve on the United States highest court, an ideologically divided nine-member panel that interprets America's Constitution, it's founding legal document.

However, barring unexpected missteps, Kagan was expected to win approval of the Democrat-dominated committee and then the full Senate before the top U.S. court opens its next session later this year. She would replace Justice John Paul Stevens, a liberal voice on the divided court, who has retired.

Kagan was intensely questioned by Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, about her dealings with the Pentagon when she was dean of Harvard Law school, suggesting an antimilitary bias.

She had briefly banned military recruiters from the school in protest over its policy that prevented gays and lesbians from serving openly in the military.

Kagan contended that recruiters had access to Harvard law students "every single day I was dean."

Sessions declared himself "a little taken aback by the tone of your remarks because it is unconnected to reality."

Kagan responded that, "I respect and indeed I revere the military."

She also faced sharp questioning from Republican Sen. Charles Grassley on the role of international law in U.S. courts, which some conservatives oppose. The Supreme Court has previously cited foreign law in deciding cases, such as when it struck down the U.S. execution of juvenile murder defendants as unconstitutional.

Kagan said foreign law could be useful "for getting good ideas" when interpreting the Constitution but that justices should not feel bound by it because the Constitution is a unique document.

It was the 50-year-old Kagan's second appearance before a Senate panel. She was approved last year as Obama's solicitor general. In that job she represents the administration in cases before the Supreme Court.

As Tuesday wore on, Kagan was frequently quick with humor and at ease in the give and take with committee members. She handily maneuvered through a thicket of challenges, leading questions and senatorial comments, without giving offense — or disclosing much about her views that could threaten her confirmation.

"Your stock really went up with me," said Sen. Lindsey Graham, a Republican, after Kagan praised one of the judicial appointments of President George W. Bush who was blocked by Democrats. Miguel Estrada was qualified both for the appeals court job to which he was nominated in 2001, and for the Supreme Court, she said. Several committee Democrats who had refused to confirm him sat silent.

She also spoke favorably of televising Supreme Court proceedings. "It would be a great thing for the court, and it would be a great thing for the American people," she said.

She said recent rulings upholding gun rights are a "binding precedent" for future cases, and said Supreme Court opinions require that in any attempt to restrict access to abortion, "the woman's life and the woman's health must be protected."

Kagan would be Obama's second selection for a life term on the top court. Last summer Sonia Sotomayor became the first Hispanic U.S. Supreme Court justice.

The court is one of three branches of the U.S. government, designed in the Constitution with separate but equal powers. The court was established to decide on the constitutionality of laws and the way they have been interpreted by judges in lower courts. That gives it huge power in deciding whether laws enacted by Congress and their application by the president's executive branch are constitutional.

Kagan was unlikely to change the court's ideological makeup, since she would replace the liberal Stevens. But she would add relative youth to the liberal wing of the court, which became more conservative under Bush.

Despite having never been a judge, Kagan has a first-rate resume. Her background includes education at Princeton, Oxford and Harvard, clerked under former Justice Thurgood Marshall, worked in private practice, taught at and became the first woman dean at Harvard law and served in the White House under former President Bill Clinton.

Written by <P>STEVEN R. HURST,Associated Press Writer</P>

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