WASHINGTON — Elena Kagan declined an invitation to criticize the current Supreme Court on Wednesday, testifying at the third day of confirmation hearings, "I'm sure everyone up there is acting in good faith."
In a lengthy exchange with Sen. Sheldon Whitehouse, 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 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. [Read 10 Things You Didn't Know About Elena Kagan.]
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 Barack 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."
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'd be more like John Roberts or more like Ruth Bader Ginsburg." [See which industries donate the most to Sessions.]
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.
Whitehouse seemed more concerned with 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," she 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."
Kagan did cast doubt on a key argument Roberts outlined in a recent case in which the court said corporations and unions are free to spend their own funds on political activity. In a concurring opinion as part of a 5-4 ruling, the chief justice said legal precedents whose validity is a matter of intense dispute can be toppled.
"It should be regarded with some caution," Kagan said of that line of thinking. She said that there were "stronger reasons" for overturning precedents, including if they became unworkable, if courts reverse the cases that helped establish them or if new facts have made them irrelevant.