It's been 15 months since Elena Kagan won Senate confirmation to serve as the nation's solicitor general. Now she returns to the Capitol, this time in search of support for a lifetime appointment to the Supreme Court. But Senate Republicans are raising doubts about her resume, even as Democrats are singing its praises.
Because Kagan has never been a judge, her record on legal matters is difficult for senators to assess. Still, it's almost a given that any Supreme Court nomination will be challenged by those who don't belong to the president's party — even more so in a high-stakes election year. Rather than picking apart the record of this former Harvard Law School dean, Senate Republicans have instead focused on her experience — or, as they contend, her lack of it.
"Of course, one does not need to have prior experience as a judge before being appointed to the country's highest court," Minority Leader Mitch McConnell (R-KY) said Monday on the Senate floor. "But it strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience. Ms. Kagan has neither."
Nomination To Appeals Court Blocked 11 Years Ago
Kagan did spend a couple of years as a private litigator, though she has spent most of her career teaching law. She might have had experience as a judge had Republicans allowed a vote on her nomination 11 years ago to a federal appeals court. Judiciary Committee Chairman Patrick Leahy (D-VT) said Monday that Republicans should decide which it is.
"You can't on the one hand say, 'Man, did we do a great job. We blocked her nomination,' and on the other hand say, 'Oh, she should have been a judge before we consider her,' " Leahy said. "Let's deal with what we have right now. We have a superb nominee. We have somebody who should be seen by the American people as the best this country can offer. And we ought to confirm her."
Seven GOP senators joined Democrats to confirm Kagan last year as solicitor general. The White House is hoping at least some of them will back her again for the high court. Maine Republican Sen. Susan Collins is one of those seven; she is already crossing her party leadership by saying it's actually helpful to have someone on the court who does not have a judicial background:
"Every single other justice served as a lower court judge prior to ascending to the highest court, and as we saw with Justice O'Connor, it can be very valuable to have an individual who has a background other than that of being a judge," Collins said. "So I do not see that as being a problem at all."
New Lines Of Inquiry
The Senate's No. 2 Republican, Jon Kyl of Arizona, also voted to confirm Kagan as solicitor general. But because this is for a lifetime seat on the Supreme Court, Kyl said Republicans will be pushing two new lines of inquiry during Kagan's confirmation hearings.
"The first is the year or so that she's been [solicitor general] — what decisions did she make about taking cases or what the government's position would be in a case," Kyl said. "And secondly, we didn't delve really too much into her White House years on the Domestic Policy [Council] or at the Office of Legal Counsel. And I don't know to what extent there might be reluctance to give up documents that reveal what she did in those positions."
The Judiciary Committee's ranking Republican, Alabama's Jeff Sessions, said there will also be more questions about Kagan's bid to limit access of military recruiters to Harvard Law School because of the Pentagon's policy of barring openly gay people from serving.
"I think that's a big issue that she'll need to talk to the American people about, and be able to explain why she felt that she could reject the men and women who preserved this republic's freedom from her campus," Sessions said.
Grounds For A GOP Filibuster?
Still, Sessions said he doesn't think Kagan will face a dragged-out confirmation process.
"I did tell the president when we talked a couple of weeks ago, several weeks ago, and Chairman Leahy today, that I thought we could complete this by the August recess, which is what the president said he would like," Sessions said.
And Kyl, whose job is to count votes, does not expect his party to block this nomination. "Individual senators will cast their votes differently," he said. "There won't be a Republican position. It's hard for me to see, though we have to look at all of the record, that there would be grounds for filibustering her nomination."
But there will be grounds, Kyl said, for a lot of tough questions.