By Nancy Benac
Associated Press Writer
WASHINGTON (AP) — Confident but still cautious. Smart and then some. Disarming. Knowing. Wicked funny.
This week’s Senate confirmation hearings were America’s first and probably last chance for an in-depth conversation with Elena Kagan, who most likely will soon vanish into the cloistered corridors of the Supreme Court.
Judging, she told the Senate Judiciary Committee, is “not a robotic or automatic enterprise.” Nor were Kagan’s answers. Even one of her toughest questioners, Republican Jeff Sessions of Alabama, said her responses had revealed her “gifts and graces” — though without telling senators much about how she’d rule.
She fielded legal questions of every variety, comfortable enough to admit it when she hadn’t a clue about a particular case and savvy enough to clam up when she knew an answer could get her in hot water.
“I have a feeling if I do that, I’m going to end up doing many things that I regret,” Kagan said as she declined one senator’s invitation to state an opinion. She deflected any number of questions, to the frustration of the questioners.
At the same time, Kagan framed her answers in plainspoken language that suggested this product of Princeton, Oxford and Harvard still had her feet on the ground.
She called one senator’s hypothetical legislation “a dumb law.” The Constitution, she said, was a “genius document.” But the notion of a living Constitution was too “loosey-goosey.”
A thesis on judging that she’d written before attending law school was so off-base she suggested: “Let’s just throw that piece of work in the trash, why don’t we?”
Throughout three days of testimony, Kagan’s casual, self-deprecating humor charmed her toughest critics even as she dodged their most penetrating questions.
When Arlen Specter, D-Pa., impatiently rejected her answer to one question, she gently asked, “Well, may I try again?”
When Tom Coburn, R-Okla., promised her a “softball” question near the end of one long day of testimony, it sounded almost too good to be true.
“You promise?” she asked, to laughter.
At another point, Kagan left Specter temporarily speechless when she said the prospect of allowing cameras in the Supreme Court, which she supports, might mean “I’d have to get my hair done more often.”
Specter harumphed that her humor could do the court good.
Kagan began her appearance before the committee with a sentimental nod to her parents, both deceased.
“I guess I got a little from each side,” she said — her father, a lawyer who served the “ordinary people,” her mother, a demanding teacher who “changed people’s lives.”
Asked why she wanted to be a justice, Kagan said unrevealingly, “It’s just an opportunity to serve ... that’s it.”
But her eyes lit up as she talked later about watching the nine justices of the Supreme Court in action during oral arguments, which she attended regularly in her last job as solicitor general.
“Every one of them is so prepared to talk about the case, so into the case, so engaged, obviously so smart, and, I think, trying to get it right,” she said. “I developed a real appreciation for the court through those oral arguments.”
Through 17 hours of questioning, Kagan was careful not to give away too much.
Sessions lamented that her cautious answers had left many wondering, “Who is this nominee? Exactly what do you believe?”
Where are your passions? another senator pressed Kagan.
“I think I will take it one case at a time if I’m a judge,” she said. It wouldn’t be right “to come in saying, ‘Oh, I have a passion for this and that.’”
Kagan, a former Harvard Law dean and veteran of the Clinton White House, allowed that her political views were “generally progressive.” But she assured lawmakers she hadn’t worn her “political hat” for a long time.
Sen. Jon Kyl, R-Ariz., asked her if there was any room in deciding cases to draw on “what’s in the judge’s heart.” Kagan wouldn’t give an inch.
“Judging is not a robotic or automatic enterprise,” she said, “especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent, how they apply to a case. But it’s law all the way down, regardless.”
When her turn in the witness chair ended at last, Kagan allowed that the hearings had been “somewhat wearying.”
But also, she said, “a great moment in my life.”
In some ways, it was a liberating experience, too.
Time after time, during the hearings, Kagan took two steps back from something she’d written long ago and explained that she hadn’t been writing “in my own voice.”
Instead, she’d been crafting arguments for somebody else.
“I’ve created a lot of talking points in my time,” she said to laughter.
Well, she’s not speaking for anyone else any more.
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