Supreme Court Justice Elena Kagan declined to talk about the confirmation process that could seat Brett Kavanaugh and tip the nation's highest court to a conservative majority.
“I think given the events of today that's the one question I'm not going to answer,” Kagan told law students Thursday during an appearance at the University of California, Los Angeles. “We're right in the middle of events that are swirling around and I just want to leave it at that and make no news with respect to anything I say.”
Kagan spoke as the Senate Judiciary Committee grilled Kavanaugh and Christine Blasey Ford, the California psychology professor who contends that Kavanaugh sexually assaulted her decades ago.
The committee was scheduled to vote Friday on whether to recommend that the full Senate confirm Kavanaugh, who has repeatedly denied the allegations.
For the moment, the Supreme Court is one member short. Justice Anthony Kennedy retired earlier this year.
Kagan told the students that the justices worked “super hard” to find consensus after the death of Antonin Scalia in 2016 temporarily left the panel with only eight judges.
“None of us wanted to look as if the court couldn't do its job,” she said. “I think we all felt as though the country needed to feel that the court was a functioning institution no matter what was happening outside.”
The court did have a handful of 4-4 decisions, including a deadlock in 2016 in United States v Texas where an equally divided court allowed a lower court injunction to stand that blocked President Barack Obama's Deferred Action for Parents of Americans immigration program.
Even with a full court, Kagan said consensus-building, “especially perhaps in a time of acrimony and partisanship in the country at large, makes a lot of sense.”
“The court's strength as an institution in American governance depends on people believe it having a certain legitimacy ... that it's not simply an extension of politics,” she said.
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