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Obama 'empathy' questioned at Kagan hearing

By EMMARIE HUETTEMAN, MEDILL NEWS SERVICE, Written for UPI
Obama 'empathy' questioned at Kagan hearing
Supreme Court nominee Elena Kagan, President Obama's pick to replace retiring Justice John Paul Stevens, is sworn in prior to testifying on the first day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington on June 28, 2010. UPI/Kevin Dietsch | License Photo

WASHINGTON, June 28 (UPI) -- U.S. President Barack Obama was the invisible nominee as the U.S. Senate began to consider Solicitor General Elena Kagan for the U.S. Supreme Court.

"Whatever the president's motivation, his view of the role of judges is wrong," said Sen. John Kyl, R-Ariz., during Monday's confirmation hearings before the Senate Judiciary Committee. "Judges are to apply the law impartially, not take on social causes or cut down 'powerful interests.' While they may disagree with legislative solutions to problems, it is not their prerogative to 'fix' inequities."

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With midterm elections four months away, Republicans criticized Obama's philosophy of judicial empathy, an idea the administration first posed last year when the president nominated Sonya Sotomayor to the nation's high court.

GOP senators expressed concerns about what they see as Kagan's liberal legal agenda, paving the way for contentious questioning that will continue this week before the committee.

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"Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their 'broader vision of what America should be,'" said Sen. Jeff Sessions of Alabama, the ranking Republican member. "He suggests that his nominee shares that view. Our legal system does not allow such an approach."

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Sen. Patrick Leahy, a Democrat from Vermont and chairman of the committee, said it is crucial for judges to act independently of the administration. He also began to formulate the Democratic response to criticism of Obama by harshly critiquing the current court, led by Chief Justice John Roberts since 2005, for being too cozy with big business and suggesting that appointments of new justices must reverse that trend.

"That is why the Supreme Court's intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong," Leahy said. "That is why the Supreme Court's recent decision in Citizens United, in which five conservative justices rejected the court's own precedent, the bipartisan law enacted by Congress and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system."

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In her opening statement, Kagan, who has never served as a judge, said the court must act deferentially to the will of Americans.

"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," she said. "But the court must also recognize the limits on itself and respect the choices made by the American people."

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Though Republican members spoke favorably of her strong academic background, they criticized Kagan's actions limiting the military access to recruiting at the Harvard Law School, her admiration for activist judges and particularly her lack of experience on the bench.

"She has barely practiced law and not with the intensity and duration from which I think real understanding occurs," Sessions said.

Other senators pointed out that many Supreme Court justices had never served as judges until their appointments. And Kagan herself defended her record of public service.

"(As solicitor general), I serve as our government's chief lawyer before the Supreme Court, arguing cases on issues ranging from campaign finance, to criminal law, to national security," Kagan said. "And I do mean 'argue.' In no other place I know is the strength of a person's position so tested and the quality of a person's analysis so deeply probed."

Kagan will likely further discuss her experience and her decision as dean of the Harvard Law School to bar military recruiters from the campus career center in opposition to the "don't ask, don't tell" policy, which prevents gay men and lesbians from openly serving in the armed forces, when questioning begins Tuesday.

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