The Senate's No. 2 Republican, Jon Kyl, said Thursday that Supreme Court nominee Elena Kagan has the burden of proving that she is fit to serve on the U.S. Supreme Court.
In Supreme Court confirmation proceedings, it is usually up to opponents to show that a nominee should not be confirmed because of a lack of qualifications, judgment or character. But Kyl said it is Kagan who bears "the burden of proof" because she lacks a track record as a judge that can be examined.
He noted that Kagan has spent most of her career as a teacher and dean of Harvard Law School, though he observed she had also worked for a law firm for two years. He did not note her service as a White House lawyer and policy aide, or her service for the past year and half as the government's chief advocate in the Supreme Court.
At a briefing for reporters, Kyl and Jeff Sessions, the ranking Republican on the Judiciary Committee, said that because of Kagan's lack of a judicial track record, they will focus at confirmation hearings on memos Kagan wrote as a law clerk for Justice Thurgood Marshall 23 years ago.
The Republican senators said that Kagan often made recommendations to Marshall based on policy judgments, not legal judgments. They pointed, for example, to one memorandum in which she said a lower court decision on abortion went "too far" but should not be reviewed because it would give conservatives on the court a chance to make some "very bad law." In another memorandum testing the constitutionality of a strict gun law, she wrote, "I am not sympathetic." Confronted by some of those memos at her confirmation hearing to be solicitor general a year and a half ago, Kagan said her job as a law clerk was to "channel" Marshall's views when she made recommendations to him.
If the Marshall memos do become fodder for a lot of questions at the Kagan confirmation hearings, Democrats will surely point to William Rehnquist's responses when he was nominated to the court by President Nixon. Rehnquist, too, had no judicial experience and faced questions about his memo, written as a Supreme Court law clerk in 1952, urging his boss, Justice Robert Jackson, to uphold segregation in public schools in the landmark case of Brown v. Board of Education. "I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues," Rehnquist wrote, "but I think [the court's 1896 decision upholding segregation] was right and should be re-affirmed."
At his confirmation hearing, Rehnquist said he believed "that the memorandum was prepared by me as a statement of Justice Jackson's tentative views."
Jackson would eventually join the court's unanimous decision taking the opposite position, and Rehnquist would be confirmed as a Supreme Court justice, later promoted by President Reagan to chief justice.