Specter pushes Kagan during Supreme Court confirmation hearing

WASHINGTON - Sen. Arlen Specter, Democrat of Pennsylvania, wasn't getting straight answers and was kind of grumpy about it, peering down Tuesday at Supreme Court nominee Elena Kagan and lashing her with questions - as if she were a first-year law student who had overslept and didn't know the cases for the day.

"Let me go on to another question - I have not been making much progress," Specter said at one point, exasperated after the former Harvard Law School dean declined to give her precise opinion of Supreme Court precedents that have made it easier for the justices to overturn congressional actions.

Specter, a 29-year member and former chairman of the Senate Judiciary Committee, seemed determined to make the most of what is most likely his final Supreme Court confirmation hearing. He has now had a role in 13 such hearings, and has quizzed every current member of the high court, but he cannot be reelected after switching from the Republican Party and then losing the Democratic primary last month.

Specter, 80, a former prosecutor, has drawn intense interest for his performance at Supreme Court confirmation hearings, especially since his 1991 cross-examination of law professor Anita Hill at the hearing for now-Justice Clarence Thomas.

On Tuesday, Specter told Kagan during his allotted half-hour of examination, "There's a lot of concern in the Senate about the value of these hearings." Senators are tired, he said, of hearing nominees for the court promising to use their power modestly and then "making a 180-degree U-turn."

In 1987, Judge Robert Bork was brutally honest about his constitutional views, such as that there is no right to privacy, during his confirmation hearings. That sunk his nomination, and Specter, as a Republican swing vote on Judiciary, played a key role.

Since then, most nominees have tried to be as bland in their testimony as possible.

Specter tried from the beginning to get Kagan - whom he voted against last year as U.S. solicitor general - to be as vivid as his pastel-striped tie.

He wanted to know: Was the Supreme Court "disrespectful" to Congress' judgment when it ruled in January that limits on corporate spending in elections were unconstitutional?

"When I stepped up to the podium in Citizens United, I thought we had extremely strong arguments," responded Kagan, who as solicitor general defended the corporate-spending ban on behalf of the Obama administration.

"Ms. Kagan, I'm going to move on - I know all of that," Specter said impatiently.

"Can I try again?" Kagan offered. "The answer is that great deference is due to congressional fact-finding."

Well, Specter asked, was the decision disrespectful or not?

"I don't want to characterize the Supreme Court," she said.

"Well, I want to move on," Specter said. "If you don't want to characterize, then I want to ask my next question."

And so it went. But Specter did draw Kagan out on two issues. She agreed with his concern that the court's workload had dropped, from 146 cases a term in 1987 to about half that now.

"It is a bit of a mystery why it's declined so precipitously, but I do agree with you that there seem to be more circuit conflicts," Kagan said, referring to unresolved differences between federal appeals courts on what she said were "vital national issues."

Kagan also managed to throw Specter off stride when she embraced his longtime push for televising Supreme Court proceedings. That would be good for the people and the court, she said, and then paused.

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

Specter was speechless for a moment. Then, chuckling, he said, "Let me commend you on that."

"Seriously," Specter continued, "you have shown a really admirable sense of humor, and I think that is really important. As Sen. [Charles E.] Schumer said yesterday, we're looking for somebody who can moderate the court, and a little humor would do them a lot of good."