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Originally published Saturday, July 3, 2010 at 2:42 PM

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Kagan hearings delivered a little something for everyone

Elena Kagan's 17 hours before the Senate Judiciary Committee hinted at what kind of Supreme Court justice she'll be.

McClatchy Newspapers

WASHINGTON — Elena Kagan's 17 hours before the Senate Judiciary Committee hinted at what kind of Supreme Court justice she'll be, and gave senators a chance to maneuver for advantage.

So everyone got something out of the three days last week during which Kagan answered nearly 700 questions.

"The hearing provides an important platform for the nominee," said Dion Farganis, assistant professor of political science at Elon University in Elon, N.C., and co-author of a study on the hearing process. "And clearly it's a platform that serves the senators' purposes."

The Senate committee is expected to vote on the nomination after Congress returns from its recess July 12. The panel has 12 Democrats and seven Republicans.

Confirmation likely

Since Democrats control 58 Senate seats, confirmation seems assured, probably within a month. The hearing, which concluded Thursday with several panels of outside witnesses, seemed to confirm preconceptions rather than change lawmakers' minds.

Farganis and Justin Wedeking, of the University of Kentucky, systematically tallied the back-and-forth between Kagan and the committee's 19 members, identifying 695 "exchanges," which each amounted to a question and an answer.

This back-and-forth suggests that:

• The 50-year-old former Harvard Law dean will be comfortable at the court and not cowed by her more senior colleagues, though by tradition she'll fetch coffee and open doors for them.

• The self-described "progressive" will start as part of the court's liberal wing, though not on every issue.

• She will support televising oral arguments, but will defer if others resist.

• She will be recusing herself from 10 or so cases she's been involved with as solicitor general.

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• Not in the least, she'll be building alliances, employing the sense of humor and light social touch she revealed as the hearings wore on.

"Harvard, it's a great institution; someplace I couldn't have gotten in," said Republican Sen. Lindsey Graham of South Carolina.

"I would have taken you," Kagan said.

At another point, she offered a cautionary note about letting television cameras into the Supreme Court.

"It means I'd have to get my hair done more often, senator," Kagan said.

Beyond Kagan, the hearings served as important political theater five months before November's congressional elections.

Democrats were trying to show that President Obama could appoint a mainstream woman to the Supreme Court, thereby providing an argument against those who say he is too liberal.

And Republicans, though most conceded early in the proceedings that Kagan would be confirmed, took hours to promote their conservative agenda.

Political philosophies

That strategy was most obvious toward the end of the hearings, when Sen. Tom Coburn, R-Okla., one of the Senate's most ardent conservatives, had a conversation with Kagan about political philosophies.

"We have problems with confidence in our economy, confidence in our government, confidence in Congress," he said.

Democrats elaborated on their own points: Obama understands his constituency; the appointment of Kagan should be seen as a sensitive choice and a historic one.

Like the other justices, Kagan will hire four recent law-school graduates to serve as clerks. The Ivy League will almost certainly dominate her picks. Of the 36 Supreme Court law clerks this year, half attended either Harvard or Yale law schools.

Kagan could follow the practice of some new justices and hire a clerk or two who has worked at the court previously. Wherever the clerks come from, Kagan will work them hard.

"She has a reputation for annihilating the unprepared," former Marine officer and Harvard Law School graduate Robert Merrill told the Judiciary Committee.

In September, Kagan will meet with her new colleagues to decide what additional cases deserve a full hearing.

The court, led by conservative Chief Justice John Roberts, has already agreed to hear 37 cases for the October term, roughly half of the total number of cases likely to be taken during the year.

The court that Kagan will join is famously split on some key issues, but it's also often unified more often than many casual observers think.

The court reached 46 percent of the decisions issued during the recently concluded term on a 9-0 vote, compared with 38 percent in 2006. The court split on a 5-4 margin in 18 percent of the term's decisions, compared with 33 percent in 2006.


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