WASHINGTON – Supreme Court nominee Elena Kagan’s confirmation appeared almost certain Wednesday as she spent a third day assuring the Senate Judiciary Committee that she has no ideological agenda.

“Solicitor General Kagan will be confirmed,” Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., predicted during a break in the panel’s hearing.

Republicans, who spent another frustrating day trying to portray Kagan as a die-hard liberal, conceded that theirs seemed a losing cause.

“I assume she will be confirmed,” said Sen. John Cornyn, R-Texas, a committee member. “The arithmetic is not there. There would have to be some dramatic development to change that.”

Democrats, who control 58 of the Senate’s 100 seats, often talked as if she were ready to take the oath.

“You’re a wonderful role model for women,” said Sen. Dianne Feinstein, D-Calif. “We’ll forget whether you’re a Democrat or Republican. You know, you’re reasoned, you have a commitment, you have a dedication and a staying power, and you do us all well.”

After spending 10 hours answering questions and fending off partisan thrusts Tuesday, Kagan returned Wednesday for what was expected to be her final day of testimony. The panel’s senior Republican, Jeff Sessions of Alabama, had said he hoped “we can learn more about the nominee,” but the hearing turned largely into a replay of Tuesday.

Republican Sen. Lindsey Graham of South Carolina seemed highly sympathetic to Kagan. He voted last year for Sonia Sotomayor, President Obama’s first Supreme Court nominee.

He’ll face no partisan punishment if he votes for Kagan, too.

“We have no Republican position,” said Senate Republican Whip Jon Kyl of Arizona. “We are not trying to get Republicans to vote one way or the other.”

Obama nominated Kagan, 50, to replace Justice John Paul Stevens, who’s retiring at age 90. Her hearing has followed what’s become a standard judicial confirmation script, as sympathetic Democrats build her up and skeptical Republicans try to knock her down a notch or two.

The largely predictable give-and-take was evident Wednesday, as Sen. Orrin Hatch, R-Utah, grilled Kagan on whether she’d discussed “partial-birth” abortion policy with the American College of Obstetricians and Gynecologists and whether those talks led the group to soften its stance.

The group reportedly had been considering taking the position that it saw no instances in which such abortions would be necessary to preserve women’s life or health. It eventually said that such abortions might be “the most appropriate procedure” in certain instances.

Hatch quoted a memo Kagan wrote for Clinton administration officials that says the doctors’ original view “of course, would be a disaster.” Hatch said, “Your language played an enormous role in both legal and political fights over banning partial-birth abortion.”

Kagan disagreed. “I don’t think that’s what happened here,” she said.

Hatch persisted, and she conceded that the memo “is certainly in my handwriting. I don’t know whether the document was a product of a conversation I had with them.”

Sen. Sheldon Whitehouse, D-R.I., described what he seeks in a nominee:

“They must respect the role of Congress they must not prejudge any case, but listen to every party that comes before them, that they must respect precedent and limit themselves to the issues that the court must decide,” he said.

“I do agree with that,” Kagan replied.

Republicans and Democrats alike have voiced concern about whether Kagan would respect legal precedent and have stressed that they don’t want judicial activists legislating from the bench.

Sen. Al Franken, D-Minn., for instance, cited a recent controversial campaign-finance ruling that overturned a 1990 precedent as an example of judicial activism by the conservative majority on the current court.

To all lawmakers, Kagan essentially said: Don’t worry.

“The doctrine of precedent is in large part a doctrine of constraint,” she said, adding that “judges should realize they’re not the most important people in our democratic system of government.”

At the same time, Kagan said that judging isn’t a “robotic enterprise.” That’s particularly true at the Supreme Court level, she said, “where the hardest cases go.”

As a result, “judges do in many of these cases have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law.”

 

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