At Confirmation Hearings, GOP Eyes Kagan's Record

U.S. Supreme Court nominee Elena Kagan on Capitol Hill on May 13. i i

U.S. Supreme Court nominee Elena Kagan faces questions this week from the Senate Judiciary Committee, which opens hearings on her nomination. Tim Sloan/AFP/Getty Images hide caption

itoggle caption Tim Sloan/AFP/Getty Images
U.S. Supreme Court nominee Elena Kagan on Capitol Hill on May 13.

U.S. Supreme Court nominee Elena Kagan faces questions this week from the Senate Judiciary Committee, which opens hearings on her nomination.

Tim Sloan/AFP/Getty Images

The Senate Judiciary Committee opens hearings Monday on the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. So far, Republican attempts to arouse controversy about Kagan have gained little traction, but this week marks the main event.

Kagan's supporters admit privately that if there is a silver lining to the Gulf oil spill, it is that Kagan has been able to sail unscathed beneath the news radar screen for the seven weeks since her nomination.

For more than a month, Republicans have been hurling themselves at the Kagan appointment, with about as much effect as hurling themselves at a brick wall.

The critiques include her lack of judicial experience, her Clinton White House tenure and her deanship at Harvard Law School. All preview the GOP lines of attack.

"We know she has served extensively and repeatedly as a political operative, adviser and policymaker — quite a different job than that which she will assume should she be confirmed," says Republican Sen. John Cornyn of Texas.

Utah's Sen. Orrin Hatch skewers her lack of experience: "Supreme Court justices have had experience behind the bench as a judge, before the bench as a lawyer, or both. Ms. Kagan has neither."

Kagan's Heroes

Republicans have also criticized Kagan for what they call her heroes: the two judges she clerked for after law school, federal appeals court Judge Abner Mikva and Supreme Court Justice Thurgood Marshall, as well as former Israeli Chief Justice Aharon Barak. Jeff Sessions, ranking Republican on the Senate Judiciary Committee, asks rhetorically, "Isn't it true that a person's heroes tell a great deal about who they are?"

Indeed, Marshall, Mikva and Barak do have liberal judicial records. But the only one Kagan has singled out repeatedly as her hero is Marshall, the architect of the nation's civil rights legal revolution, and the man who argued and won Brown v. Board of Education, the case that ended racially segregated public schools in the United States.

At the ceremony announcing her nomination, Kagan praised Mikva and Marshall, saying that Mikva "represents the best in public service," and that Marshall "did more to promote justice over the course of his legal career than did any lawyer in his lifetime." In contrast, Kagan's praise of the former Israeli chief justice appears to be from her introduction of him when he spoke at Harvard, a kind of praise she has also heaped on conservative speakers at Harvard such as Justice Antonin Scalia.

Lines Of Attack

Undoubtedly, the principal line of Republican attack this week will be the assertion that Kagan as dean was anti-military. As Sessions puts it, "Ms. Kagan obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers."

Kagan will undoubtedly say that she did oppose the military's "don't ask, don't tell" policy, but that her job as dean was to ensure that nobody was the victim of discrimination on campus — neither gay students nor those interested in being military lawyers. She will seek to persuade senators that she tried to steer a middle course that allowed military recruiters on campus, but did not give them access to the school's office of career services.

Republicans, too, will focus on the 170,000 documents and e-mails from Kagan's four-year tenure in the Clinton White House. While the documents do portray a hard-edged and politically savvy lawyer, the memos of one-time Reagan administration aide John Roberts were even more pointed. At his confirmation hearing to be chief justice, Roberts explained them away as representing the views of the administration he was serving. Expect Kagan to use those answers as her model.

Probably Kagan's biggest problem will be that as a scholar she was acidly critical of the cliched and unresponsive answers of previous Supreme Court nominees during their confirmation hearings. The process, she wrote, has taken on "an air of vacuity and farce," in part because senators have gotten away from "the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee's set of constitutional views and commitments."

So expect senators to ask Kagan to live up to her own standard.

Preparing For The Hearings

For the past seven weeks, Kagan has been prepping for these hearings — studying, spending hours in mock sessions, grilled by White House staffers playing the roles of senators.

Her handlers are trying to get her to slow down her answers, to take time to think before replying, and they are trying to whack out of her a streak of what even her friends admit can sound like arrogance. In this arena, they tell her, boring is good.

Justice Stephen Breyer has said the best advice he got when he was prepped for his confirmation hearing came from veteran politico Michael Berman. Supreme Court nominees, Berman observed, are used to being the smartest kids in the room — not a good tactic at a confirmation hearing. "To prove to people that you know more than they do doesn't do you any good," Berman says.

The object, after all, is not to prove your smarts, but to get confirmed.

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