Specter says he could vote against Kagan

WASHINGTON - Sen. Arlen Specter (D., Pa.), returning to his customary role as a maverick in Supreme Court confirmation hearings, said Wednesday he was "thinking about" voting against nominee Elena Kagan because of her less-than-substantive answers to his questions.

He said he needed time to "digest" Kagan's record and the full range of her testimony in two days of questioning before the Senate Judiciary Committee before making up his mind.

Minutes earlier, Specter had cut short his second round of allotted questions and warned that he might withhold support for the nomination.

"I don't know that it would be useful to pursue these questions any further," he said. "We are searching for a way senators can get substantive answers . . . short of voting no."

Kagan, the Obama administration's solicitor general and former dean of Harvard Law School, had brushed aside Specter's efforts to get her to comment on whether she favored a standard for the court that gives stricter scrutiny to legislation, or favors the looser "rational basis" approach that gives more deference to Congress.

She also would not answer whether the Supreme Court should have agreed to hear an appeal in a lawsuit brought against Saudi Arabia by thousands of 9/11 victims and family members. As solicitor general, she urged the court last year not to take the case, which was pressed by law firms including Cozen O'Connor PC in Philadelphia.

"You shouldn't want a judge who will sit at this table and who will tell you she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues," Kagan said.

Still, Specter said he was "not frustrated" by Kagan's rhetorical tiptoeing. "I have a role and she has a role," he said during a break in the hearing.

Actually, Specter said, Kagan had been more forthcoming than many nominees - she agreed during Tuesday's questioning with his long-standing call for televised Supreme Court proceedings, while every other would-be justice has declined to answer.

And Specter said he did not agree with Sen. Tom Coburn (R., Okla.), who suggested Tuesday that the Senate would be better off getting to know Supreme Court nominees informally rather than holding hearings, as was done before the 1930s.

"I believe the justices across the street pay some attention to what we do here," Specter said. "... They may not care about what Arlen Specter says on the Senate floor, but they may care about . . . the historians."

He cited two of the most famous hearings in his 29 years on the committee - one being the 1987 nomination of Judge Robert Bork, when the nominee's strong conservative views were aired and helped sink his nomination.

"Had Bork been confirmed, with his views and powerful intellect, Roe v. Wade would have been overturned, along with a lot of other things," Specter said.

And in 1991, he said, law professor Anita Hill's accusations of sexual harassment against then-nominee, and now justice, Clarence Thomas "elevated women's rights" by making people more aware of the problem. Harassment "hasn't stopped . . . but it sure has been cut back," said Specter, whose strong cross-examination of Hill had prompted an uproar.

"Listen, there's a calculation on the part of the nominee and her advisers that this is the way you testify, that this is the way to help themselves," Specter said. "Whether they're right or wrong comes out in the wash."