WASHINGTON — Her confirmation all but assured, Supreme Court nominee Elena Kagan neared the end of a final grueling day of Senate questioning Wednesday, fielding GOP challenges on abortion, gays in the military and other divisive issues while sidestepping Democrats' invitations to blast conservative decisions by the court she's hoping to join.
Kagan, prompted by Democratic supporters on the Senate Judiciary Committee, gave a blunt denunciation of "results-oriented judging," the adjusting of judicial reasoning to fit a preconceived conclusion, but she refused to join them in applying the criticism to the current court under Chief Justice John Roberts. "I'm sure that everybody up there is acting in good faith," she said.
"Solicitor General Kagan will be confirmed," Sen. Patrick Leahy, D-Vt., the panel chairman, confidently declared during a break in the hearings. [See a collection of editorial cartoons about the Kagan nomination.]
Republicans, despairing of their inability to get President Barack Obama's nominee to reveal her legal views or say anything that might threaten her confirmation, acknowledged as much.
"I assume she will be," said Sen. John Cornyn, R-Texas.
Barring an unexpected turn, Kagan will succeed retiring Justice John Paul Stevens and become the fourth woman in the Supreme Court's history. It would be the first time that three of the court's nine justices were women.
Senators were expecting to finish their public questioning of Kagan late Wednesday, but it was unclear in light of planned funeral arrangements for Sen. Robert C. Byrd, D-W.Va., when they might complete the hearings, including testimony from outside witnesses that had been planned for Thursday.
Sen. Jeff Sessions of Alabama, the top Republican on the panel, said Kagan's careful answers had made it difficult to determine whether she would be more like Roberts or Ruth Bader Ginsburg, referring to the conservative chief justice and to President Bill Clinton's nominee to the high court, generally regarded as a member of its liberal wing. [See who donates money to Sen. Sessions.]
On one controversial matter, Kagan defended her efforts as a domestic policy aide to Clinton to scale back a GOP-proposed ban on a procedure opponents call partial-birth abortion — something she called "an incredibly difficult issue."
The former president, she said, "thought that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman."
Sen. Orrin Hatch, R-Utah, pressed Kagan about a note she wrote saying it would be "a disaster" if the American College of Obstetricians and Gynecologists issued a statement saying there was no case in which the procedure was necessary, and about her intervention to prevent the group from doing so.
She responded that the disaster would have been if the organization's statement didn't reflect its full view that in some instances, the procedure was "medically best."
"This was all done in order to present ... both to the president and to Congress the most accurate understanding of what this important organization of doctors believed," Kagan said.
For the second day in a row, Kagan asserted she would be able to separate her personal and political views from her job as a justice.
"As a judge, you are on nobody's team. As a judge, you are an independent actor," Kagan said.
She also defended her decision as solicitor general not to pursue two cases challenging the constitutionality of the military's ban on openly gay soldiers. Sessions pressed her on that decision, given "your widely publicized opposition to the 'don't ask, don't tell' law" and a statute meant to bolster it.
Kagan said that one of the cases Sessions cited had upheld the law's constitutionality. In the other, after consulting with Pentagon lawyers, she said she made a strategic decision to wait before taking action.