Kagan Praised, Blasted on Eve of Hearing

By Kenneth Jost
Supreme Court Editor, CQ Press
      Elena Kagan goes before the Senate Judiciary Committee on Monday [June 28] with less known about her legal views than any Supreme Court nominee in the past two decades. Not since then-Judge David Souter was dubbed the “stealth candidate” in 1990 have senators had so little clearly pertinent evidence to use in trying to gauge what kind of justice a presidential nominee will be if confirmed by the Senate for the lifetime post.
      One year ago, Republicans and other conservatives had some significant ammunition to use against President Obama’s first Supreme Court nominee: then-Judge Sonia Sotomayor. They used Sotomayor’s participation in disputed rulings in gun rights and affirmative action cases and her controversial speeches on diversity to fashion a line of attack that eventually produced 31 votes against her confirmation.
      Kagan’s lack of judicial record or extensive legal scholarship allows the White House and other supporters to call for her confirmation based on general praise for her knowledge, judgment and experience. In a conference call with reporters on Friday, White House senior adviser David Axelrod noted Kagan’s service in all three branches of government — as a Supreme Court law clerk, congressional aide, White House adviser and now solicitor general — along with what Axelrod described as Kagan’s “respect for the proper role that the [Supreme] Court plays” in the U.S. system of government.
      Critics looking for ammunition against Kagan have dug deep into the more than 160,000 documents from Kagan’s four years in the White House during President Bill Clinton’s second term (1995-1999), first as associate counsel and then as deputy director of the domestic policy council. In addition, they have used memos from her year as a law clerk to the late Justice Thurgood Marshall and her deanship of Harvard Law School, where she briefly limited assistance to military recruiters because of the military’s “don’t ask, don’t tell” policy on services by gays and lesbians.
      In a press conference in front of the Supreme Court on Thursday, Curt Levey, executive director of the conservative Committee for Justice, said the evidence shows Kagan to be a politician and a judicial activist. “The more we’ve learned about her, the more we’re concerned that she’s not going to respect the rule of law,” Levey said.
      Levey and representatives from eight other conservative groups rattled off a laundry list of supposed vulnerabilities for Kagan. They include conventional hot-button issues such as abortion, affirmative action and gun rights along with more arcane topics such as the First Amendment and foreign and international law.
      Levey acknowledged, however, that Kagan is drawing less scrutiny than Sotomayor did a year ago. “She’s a stealth candidate,” Levey. “There’s still a lot we don’t know.”
      So far, only one Republican senator, Oklahoma’s James Inhofe, has declared his opposition to Kagan’s confirmation. But Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., says he expects most of the GOP’s 41 senators will vote against her. None of the 57 Democrats or the two independents who caucus with Democrats have publicly voiced doubts about Kagan’s confirmation.
      With the hearings less than a week away, Senate Republican leader Mitch McConnell of Kentucky and Utah’s Orrin Hatch, a former Republican Judiciary Committee chair, both went to the Senate floor with critical speeches depicting Kagan as a political appointee and a potential judicial activist. For his part, Leahy told reporters at a Senate press gallery session that Kagan has a “great record” and understands the Constitution and the law and their effects on “hardworking Americans.”
      The Judiciary Committee hearing opens at 12:30 p.m. on Monday, less than two hours after the Supreme Court ends its current term with four final decisions, including the closely watched test case on the applicability of Second Amendment gun rights to state and local laws. It will also be the final day on the court for Justice John Paul Stevens, whose decision to retire midway through his 35th year on the court created the vacancy that Kagan has been chosen to fill.
      The hearing will begin with opening statements from the committee’s members: 12 Democrats and seven Republicans. Kagan is expected to give an opening statement late Monday afternoon, with questions then to begin on Tuesday. Leahy says the hearing will be concluded by the end of the week — the same schedule followed in the recent confirmation hearings for Sotomayor and for President George W. Bush’s two nominees: Chief Justice John G. Roberts and Justice Samuel A. Alito Jr.
      Late Friday, Leahy and ranking Republican Jeff Sessions of Alabama released a list of two dozen public witnesses for the final day of the hearing. The Democrats’ witnesses include Harvard colleagues of Kagan’s, her Bush-appointed predecessor as solicitor general, and two one-time employment discrimination plaintiffs who lost closely divided decisions from the Roberts Court.
      The Republicans’ list of 14 witnesses is heavy with current or retired military officers and also includes conservative law professors and representatives of anti-abortion and pro-gun rights groups. The committee will also hear from two representatives of the American Bar Association’s Standing Committee on the Federal Judiciary, which gave Kagan its highest rating for the position: “well qualified.”
      Levey says he expects “some tough questions” for Kagan from GOP senators. Axelrod said Kagan has been prepping for the hearing by “fielding questions for several hours a day” over the past week. “She’s certainly prepared to deal with whatever comes,” he told reporters.