Kagan Begins Senate Confirmation Hearings

On Monday, Supreme Court nominee Elena Kagan begins confirmation hearings before the Senate Judiciary Committee. The former dean of Harvard Law School and current U.S. solicitor general will answer tough questions about her background and abilities to be an associate justice on the Supreme Court. Host Michel Martin speaks with Eva Rodriguez, legal affairs editorial writer for The Washington Post, and Kurt Schmoke, dean of Howard University School of Law, for more on what to expect from the hearings.

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MICHEL MARTIN, host:

I'm Michel Martin and this is TELL ME MORE from NPR News. My thanks to Tony Cox for sitting in last week.

We'll tell you have a major ruling from the U.S. Supreme Court on this, the last day of Justice John Paul Stevens' 35-year tenure on the bench. At issue: Chicago's ban on handguns. We'll talk about that in a few minutes.

But, first, as Justice Stevens steps away from the court, it is the first day of hearings from his possible replacement nominee, Elena Kagan. Ms. Kagan's resume includes her work as solicitor general for the White House arguing for the Obama administration before the court. She's also a former dean of Harvard Law School and former political advisor to President Bill Clinton.

As would be expected for a position that its occupants fill for decades, observers from all sides of the political spectrum are watching this selection closely. With an eye toward her higher end record as a law school dean, for example, and her perspectives on issues like gays in the military.

We turn now to two people who are watching the confirmation hearings closely, Eva Rodriguez. She's a former Supreme Court reporter. The former editor of Legal Times, now with The Washington Post editorial board, she joins us from time to time to talk about matters before the court. Also with us, Kurt Schmoke, dean of Howard University's School of Law. And I welcome you both and thank you both so much for joining us.

Mr. KURT SCHMOKE (Dean, Howard University School of Law): Well, thanks for having me.

Ms. EVA RODRIGUEZ (Editorial Writer, The Washington Post): Thanks, hi.

MARTIN: Now, Eva, let's start with a bit of a primer, briefly, if you would, on the lines of questioning we're likely to see since Ms. Kagan was first nominated.

Ms. RODRIGUEZ: I think you're going to Jeff Sessions, who's the top Republican on the Judiciary Committee come out with a question about why, as dean of Harvard Law School, Ms. Kagan restricted some privileges for military recruiters on campus. I think you're going to hear them hitting her hard on a lack of judicial experience, and, actually, a lack of courtroom experience. But for the last year, where she has been solicitor general, she had no experience prior to that, litigating cases, arguing cases.

And I think they're going to hit her as hard as they can on her years in the Clinton White House, arguing that and I think this is wrong by the way but arguing that she is ideological and political and ill-suited to the bench.

MARTIN: Because of her service in the White House?

Ms. RODRIGUEZ: Yeah, I think so. I mean, I think as a matter of fact, all the records that have come out from her White House her years in the Clinton White House show her to be middle ground, pragmatic, non-ideological. So I don't know any other reason why some Republicans would go after her on this other than to try to score, you know, political points. But in my opinion they're baseless.

MARTIN: Now, Eva has told us a lot about the lines of criticism or the lines of questioning that the Senate Republicans are likely to pursue. Dean Schmoke, I wanted to ask you about something that has emerged particularly in a number of blogs written by law professors in recent months and weeks.

And one of it has to do with her record of hiring while dean at Harvard Law School. There are a number of professors, particularly professors of color have said that she bypassed opportunities to improve the representation of women and minority law professors in favor of hiring more conservatives, white male conservatives, in part in order to appease political complaints. And I wanted to know, first of all, if you share that opinion, and secondly, if you think that's a fair line of inquiry, also, for these hearings.

Mr. SCHMOKE: I can answer the second one first. I think it's a fair line of inquiry, but I think people, once they understand the hiring process in law schools, will recognize this is something of a red herring. Deans aren't free actors in the hiring process. This is a classic example of shared governance between the faculty hiring committee or usually called appointment promotion and tenure committee and the dean.

So the dean can't just go out on her own and say, you know, I like this person, I think it would satisfy an area of law or diversity or something like that, and hire them. It's a process that involves both the dean and the faculty. So I'm particularly impressed with her record as a dean.

Understand, Michel, I know Kagan, I've worked with her. I've worked with her not only as a colleague, as a dean, but worked with her on a nonprofit organization that gives Scout Fellowships to law students who are going into public interest law. So I know a great deal about her record. And I think that the hearings are just going to give her an opportunity to explain herself.

But I absolutely agree with the line of inquiry that was just described, that that's exactly what they'll approach her on.

MARTIN: Now, Eva, in the past, Kagan herself has criticized the confirmation hearings as a vapid and hollow charade.

Mr. SCHMOKE: Yeah.

MARTIN: And I wanted to ask each of you whether you, A, think that's true, and, B, is she likely to depart from that course that she has criticized herself? So, Eva, I'll ask you that first, particularly as a former Supreme Court reporter.

Ms. RODRIGUEZ: I don't think it quite was vapid and vacuous. But I do think it's been unnecessarily shallow and not illuminating. So I would welcome Elena Kagan to follow her own, sort of, advice and provide more illuminating, substantive answers. Will she do that? I doubt that she will follow the model that she set out in 1995. After all, her goal now is to get confirmed, not necessarily to be an illuminating nominee.

MARTIN: Dean, what do you think about that?

Mr. SCHMOKE: Yes, Michel, I think what's happened is that people have misread or drawn the wrong lessons from the Robert Bork confirmation hearings. The lesson that people seemed to have drawn is that if you are candid, if you tell what's really on your mind, then you're going to pay the price for it. In his view, it's just I mean, in that case it's just that his views were so out of the mainstream, that, you know, he didn't get confirmed.

But I think there's a middle ground there where you can talk generally about philosophy. And then on specific issues that are bound to come before the court, you've got to defer. You can't talk about it there. That would be disqualifying in and of itself.

MARTIN: Do you think that, so Dean, do you think that we're actually likely to depart from what has been? You said it's the misreading of a history, but even so, many people Eva's written about this is that, really, people say nothing, as little as possible.

Mr. SCHMOKE: Yeah. Well, my sense is that she's probably been working on some joke to say how that comment about vapid was a part of her youthful exuberance or something, you know, because she dismissed the few lines when she was being confirmed for solicitor general, saying, you know, don't hold me to what I said 25 years ago.

But, you know, I think that she'll be more forthcoming than some previously, but not as forthcoming as some people would like her to be.

MARTIN: And, Eva, finally for you, just very briefly, if we would, and I hope we'll come back to you over the course of the hearings, if confirmed, Kagan would further change the demographic makeup of the court. Three women, three Jews, presently six Catholics, for the first time no Protestants on the court, is that important? Or is it just simply a fact of kind of who lives in the country now. And, finally, the fact that it's so heavily weighted toward the East Coast, people with Ivy League educations, does anybody care about that?

Ms. RODRIGUEZ: I care about that. And I think there are lots of people out there who care about that in the sense that your life experience does inform your viewpoints on policy matters. Now, as a judge you're required to follow the law. But the most important cases that the Supreme Court deals with are those that are the hardest questions, unanswered questions. And there is room for appropriate use of judgment.

And if you have a court that's all stacked with elite liberals from the East Coast, you're not going to have the point of view, for example, that Sandra Day O'Connor brought as a Westerner.

So I do think the diversity of life experiences and even geographic diversity is important. As far as the religious question, I'm less bothered by that, to be honest with you.

MARTIN: We have to leave it there for now, Eva. But we'll come back to you over the course of the hearings as we do often on these issues. Eva Rodriguez of The Washington Post editorial board, a former editor of the Legal Times, a former Supreme Court reporter. She joined us from The Post.

Kurt Schmoke is dean of Howard University's School of Law. He joined us from his home office. Dean, thank you. And, Eva, thank you both so much.

Mr. SCHMOKE: Great.

Ms. RODRIGUEZ: Thank you.

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