WASHINGTON — Republicans on Wednesday stepped up their pressure on Elena Kagan to defend her decisions involving abortion and the ban on gays and lesbians serving openly in the military, trying to knock her off her stride even as some of them conceded that her confirmation to the Supreme Court appears all but assured.
Questioned for a second day by the Senate Judiciary Committee, Ms. Kagan testified that her personal opposition to the “don’t ask, don’t tell” policy played no role in her decision as solicitor general not to immediately appeal all court decisions challenging the law.
She told Senator Jeff Sessions, the committee’s ranking Republican, that she had consistently acted “to vigorously defend all statutes, including the statute that embodies the ‘don’t ask, don’t tell’ policy.”
Ms. Kagan also resisted suggestions by Senator Orrin Hatch, Republican of Utah, that she sought, as a policy adviser to former President Bill Clinton, to persuade a doctors’ group to alter its public statement about the procedure that critics call partial-birth abortion.
Mr. Hatch cited a document in which Ms. Kagan scribbled a note warning that the public statement “would be disaster,” asking, “Did you write that memo?”
Ms. Kagan said she had done so, but only because she thought the statement was incomplete. “The disaster would be if the statement did not accurately reflect all of what ACOG thought,” she said, using the acronym for the doctors’ group, the American College of Obstetricians and Gynecologists.
“I just want you be aware that bothers me,” Mr. Hatch said.
The exchanges came as Ms. Kagan appeared increasingly likely to be confirmed. Senator John Cornyn, Republican of Texas, referred to her during a break in the hearings as “soon-to-be-Justice Kagan,” and said he assumed she would be confirmed.
Senator Jon Kyl, Republican of Arizona and a member of the party’s leadership, said that with only 41 Republican votes in the Senate, “a filibuster would be highly improbable.” He said his party’s leaders are simply asking the rank and file to “keep your powder dry,” and had not instructed members how to vote.
Meanwhile, in a twist on their argument that Ms. Kagan might be a “judicial activist” who would legislate from the bench, some Republicans expressed concern on Wednesday that she might be too hesitant to strike down acts of Congress that arguably exceed the federal government’s constitutional authority.
“I am concerned that she views the power of the federal government to be essentially without limit,” said Senator John Cornyn, Republican of Texas. “She said yesterday that the courts would defer to Congress, and Congress knows no limit to its power grabs, as we’ve seen.”
His comments came against the backdrop of conservative-backed lawsuits asking courts to strike down a crucial part of the recently enacted health care law, which requires people to pay higher taxes if they do not purchase health insurance, as well as the rise of the Tea Party Movement and its concerns over the expansion of federal spending and regulations, including the interventions in the banking and automotive industries amid the financial crisis.
On Tuesday, Ms. Kagan demurred when Mr. Cornyn and another Republican senator, Tom Coburn of Oklahoma, pressed her to say whether a law requiring people to purchase a certain product or do something that is considered healthy would be unconstitutional. She noted that Supreme Court rulings had granted Congress broad power to regulate matters affecting commerce, and drew a distinction between a “dumb law” and an unconstitutional one that should be struck down.
“I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” Ms. Kagan testified.
Mr. Cornyn on Wednesday accused her of sharing the approach of “imposing no limit on the federal government’s authority, and leave it up to Congress to determine the limits of its authority.” He added, “Then, I think, we will see even more federal government intrusion into our lives and our liberty.”
Similarly, Mr. Sessions pressed Ms. Kagan over the scope of congressional power to legislate under a constitutional provision that allows federal regulation of interstate commerce. He suggested that lawmakers sometimes stretched that grant of authority too far, trampling on the rights of states and individuals.
“I think the last refuge of a ‘big-government’ scoundrel is the commerce clause,” Mr. Sessions said. “When you have no other peg to hang your hat on, you claim that it impacts commerce.”
Mr. Sessions asked Ms. Kagan whether she personally agreed with a pair of decisions in which the Rehnquist Court had struck down statutes because they had too little connection to interstate commerce. Noting that those rulings were decided by a five-to-four vote and “were very controversial at the time,” he pressed her to say whether she agreed with them.
Ms. Kagan, however, demurred, saying she could not recall ever expressing any views about them in her academic writing or in speeches. She would say only that they were precedents that would be part of commerce clause jurisprudence going forward.
