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Kagan appears step closer to confirmation

WASHINGTON - JUNE 29: Supreme Court nominee Elena

WASHINGTON - JUNE 29: Supreme Court nominee Elena Kagan answers questions from members of the Senate Judiciary Committee on the second day of her confirmation hearings on Capitol Hill June 29, 2010 in Washington, DC. Kagan is U.S. President Barack Obama's second Supreme Court nominee since taking office. (Photo by Mark Wilson/Getty Images) Credit: Getty/Mark Wilson

WASHINGTON - Supreme Court nominee Elena Kagan weathered a second long day of Republican questioning on controversial issues such as abortion, guns and property rights, and Wednesday appeared to be a step closer to confirmation.

In a last shot to quiz Kagan, Republicans criticized a note she wrote on late-term abortion as a presidential aide and a decision she made as solicitor general not to file cases backing the military's "don't ask don't tell" policy on gays in two legal challenges.

But Kagan insisted in both instances she was taking the most responsible action that was consistent with her positions.

With the completion of her testimony Wednesday, Kagan, 50, who grew up in Manhattan, is poised to become the third woman on the Supreme Court, replacing Justice John Paul Stevens, who retired Monday.

Kagan, who blazed trails as the first female dean of Harvard Law School and U.S. solicitor general, first must win approval from the Senate Judiciary Committee and the full Senate - votes that are expected to be held later this month.

At a news conference Wednesday morning, Sen. Jon Kyl (R-Ariz.) said that with 41 votes a GOP filibuster was "highly improbable" and Sen. John Cornyn (R-Texas) called her "Justice-to-be Kagan." When asked whether Kagan would be confirmed, Cornyn said, "I assume she will be."

Kagan did not win over Sen. Jeff Sessions (R-Ala.) and some other committee Republicans.

"Some of the things you have said today have indicated that the combination of records and statements leave me uneasy," Sessions said.

But Sen. Patrick Leahy (D-Vt.) predicted she'd win approval.

Kagan emerged from a confirmation hearing process that senators in both parties decried for failing to fully flesh out the views of nominees to the Supreme Court, comparing her reticence to the past three candidates to appear before them.

Sen. Arlen Specter (D-Pa.) became so exasperated Wednesday after Kagan declined to discuss whether she would as a justice take on two cases that he threatened to vote against her.

"It would be my hope that we could find some place between voting no and having some sort of substantive answers," Specter said.

He joined Cornyn and Kyl in charging that nominees promise one thing at the hearing and do the contrary on the court.

Asked about Chief Justice John Roberts' metaphor of judges as baseball umpires, who just calls balls and strikes, Kagan said that "like all metaphors, it does have its limits."

It's true judges "don't have a team on the field," she said.

But judging isn't "automatic," that "we go 'ball' and 'strike' and everything is clear cut." Instead, she said in many cases judges must exercise judgment: "They're not easy calls."

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