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Supreme Court nominee Elena Kagan walks in to meet with Senate Majority Leader Sen. Harry Reid (D-NV) while making the rounds at the U.S. Capitol in May.
Supreme Court nominee Elena Kagan walks in to meet with Senate Majority Leader Sen. Harry Reid (D-NV) while making the rounds at the U.S. Capitol in May. Mark Wilson/Getty Images
With Senate hearings on Elena Kagan's nomination to the U.S. Supreme Court set to begin Monday, what had been a largely quiet path for the nation's current solicitor general has begun to get a little noisier.
It's not that anyone is credibly predicting that the 50-year-old former Harvard Law School dean's careful route to replace retiring Justice John Paul Stevens on the high court will be derailed.
The Democratic caucus controls the Senate 59-41, and GOP leaders appear disinclined to block President Obama's drama-free nominee with a filibuster.
But there's a midterm election looming. Neither party is about to let the political — and fundraising — opportunity of three days of televised Capitol Hill give-and-take go unmined.
"She's going to go through," predicts Eugene Volokh, an influential right-of-center law blogger and professor at the UCLA School of Law. "So the question I would ask if I were a Republican senator is not, 'How can I block her?' but, 'How can I increase my party’s chances to win in November?' "
Democrats, including activists like Marge Baker of People For the American Way, are looking for a similar boost. They expect to use the hearings as a chance to "shine a light," she says, on the regular-people versus big-business consequences of recent decisions by the conservative-leaning Supreme Court.
"This is even beyond November's elections," Baker says. "This is the beginning of a really important dialogue about the Supreme Court."
But as both sides attempt to rouse an as-yet largely disinterested American public (42 percent of those surveyed in a recent poll had no opinion about whether Kagan should be confirmed), the proceedings — if past is prologue — hold the promise of something quite less than an illuminating dialogue.
Kagan herself once — and now famously — wrote that confirmation hearings are peculiar ritual dances suffused with an air of "vacuity and farce."
Indeed, the hearings have become a fairly predictable spectacle of Senate speechifying, partisan questioning and safe nonanswers from the nominee. Kagan's own dismissive words are expected to be used by senators encouraging her to be more expansive in her answers.
Here's what we predict viewers will likely hear next week when Kagan attempts to continue her assiduous ascent from clerking for liberal icon Justice Thurgood Marshall, through the halls of Ivy League academia and White House politics, to potentially become the fourth woman to sit on the high court.
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Born: April 28, 1960, in New York City, where she was raised on the city's Upper West Side.
Family: Mother, Gloria, public elementary school teacher. Father, Robert, attorney. Both parents deceased. Brothers Marc and Irving, both New York City public school teachers.
Recent experience: Appointed solicitor general by President Obama on Jan. 26, 2009, and confirmed by Senate 61-31 in March, becoming first woman to serve as executive branch's chief Supreme Court lawyer. Her first oral argument before the Supreme Court was last September in a campaign finance case.
Path to nomination: Law clerk for Judge Abner Mikva of U.S. Court of Appeals for the D.C. Circuit, 1986-87; law clerk for Supreme Court Justice Thurgood Marshall, 1987-88; private practice at Williams & Connolly, 1989-91; University of Chicago School of Law professor, 1991-95; lawyer and domestic policy adviser, Clinton White House, 1995-99; visiting professor and then professor at Harvard, 1999-2003; Harvard Law School Dean, 2003-09.
Education: Princeton University, 1981; Oxford University, master's degree in philosophy, 1983; Harvard Law School, J.D., 1986.
1. Defining Words
When Obama announced in early May that Kagan would be his second high court pick — Sonia Sotomayor was confirmed last year — conservative groups churned out talking points: Kagan, never having been a judge, was "inexperienced" and would pursue a "radical, liberal agenda" on the high court. The "socialist" description also made an appearance.
But when some Democratic activists expressed their own alarm at Kagan's lack of record on hot-button issues, ranging from abortion to civil liberties, and anger that the president had bypassed proven liberal contenders, opponents dialed back the rhetoric.
Emerging from the GOP camp in recent days? Kagan will "rubber stamp" Obama's "government-expanding" agenda. She's a partisan "soldier" because of her days as a Clinton administration domestic policy adviser and will advocate a "liberal agenda" on social and cultural issues.
Those phrases are intended to appeal to Tea Party supporters, small-government adherents and social conservatives. Republican senators are also expected to invoke "Obamacare," the party's derisive term for health care overhaul legislation passed by Congress, and ask the nominee how she views state challenges to the new law.
Watch for Democrats to attempt to frame the current high court as "activist," and Kagan as a "fresh, moderating" influence on an "increasingly conservative court."
2. Are You Anti-Military?
Kagan will be closely questioned about her decision, as Harvard Law dean, to prevent the military from using official career services offices to recruit. Why the ban? The military's "don't ask, don't tell" policy barring openly gay Americans from serving violated the university's anti-discrimination policy.
She eventually allowed official on-campus recruiting after the Supreme Court ruled that funding could be denied schools that barred military recruiters.
As the question of military recruiting on campuses made its way through the federal courts, Kagan signed onto a legal brief challenging the law allowing the government to withhold money. In an e-mail to students, she called the military's policy on gays a "moral injustice."
The Senate Judiciary Committee's ranking Republican, Jeff Sessions of Alabama, has called Kagan's position — allowing recruiters access to students through campus military and veterans' groups but blocking them from university offices — "troubling." Republicans have said the nominee's adherence to such a policy can be seen as "anti-military" — making recruiting more difficult in a time of war.
Former Clinton administration lawyer Walter Dellinger, a Kagan supporter, said at a recent lawyers conference that the nominee "doesn't have an anti-military bone in her body."
"There's nothing about favoring the rights of gays and lesbians that makes one anti-military," he said.
3. What About The Second Amendment?
The GOP base, including members of the National Rifle Association, will expect Republican senators to push Kagan hard to expand on her scant record on the expansiveness of the Second Amendment. While in the Clinton White House, Kagan drafted an executive order to ban the importation of certain types of semi-automatic assault weapons. Years earlier, she also wrote a memo for Justice Marshall that the pro-gun lobby has targeted: In it, she writes that she is "not sympathetic" to a constitutional challenge of Washington gun control laws. But the Supreme Court declared D.C.'s gun ban unconstitutional in 2008, and is poised to rule Monday on a challenge to Chicago's longstanding handgun ban, which bars possession even in one's own home. Kagan is expected to be quizzed on both cases.
4. Money Equals Free Speech?
The first case Kagan chose to argue before the Supreme Court as solicitor general involved defending long-standing limits on direct corporate and union spending on political campaigns. The court ruled against her, lifting the ban. Congress is now debating how to hem in the increased influence of corporate and union money in elections expected following that decision.
But given that she chose the case, as Obama noted when announcing her nomination, Kagan can expect close questioning on an issue dear to the heart of movement conservatives, who hold the belief that money does, indeed, equal speech. But it has divided some in Kagan’s own party, pitting free speech advocates against those who warn against the poisoning power of money in elections.
5. Questions On Executive Power, Abortion And More
Democrats may be the most aggressive questioners of Kagan on her views of the relationship between the Constitution and national security issues, including the use of executive power.
With the departing Stevens seen in the liberal community as the most persuasive protector of constitutional principles in a time of war and terrorism, Kagan's lack of a record on the issues — and statements she has made suggesting support for the use of military courts rather than civil courts to try suspects captured away from the battlefield — have not inspired liberals' confidence.
Kagan, who advised Clinton on a compromise to a bill banning late abortions, will also face questions about a woman's legal right to abortion.
And she should expect queries on her lack of judicial experience and her liberal bona fides.
Her Senate supporters will attempt to highlight her perceived strengths — that she is smart; she has been confirmed before (just last year as solicitor general); and her history should convince skeptical liberals that she's on their side of the political fence.
But it will take some convincing. "The documentation available on her tells us almost nothing about what sort of judge she would be," says Paul Campos, a liberal University of Colorado law professor who has been a leading critic of Kagan's scholarly output. "There is no basis for judging the merit of the nomination — what makes her the best person to be on the Supreme Court."
After next week, Republicans will no doubt be hoping they've provided their base some theater on guns, abortion and the military. Democrats will be questioning whether they've made the case that the current court needs Kagan to stand up against corporate interests, and whether the us-against-corporations-like-BP narrative will power them to better prospects in November.
And liberals like Campos will be looking for signs that Kagan is, indeed, one of them — if not a perfect substitute for the retiring Stevens.