Senators Judge Kagan's Supreme Court Aptness Elena Kagan, confirmed last year as solicitor general, returns to the corridors of the Capitol, this time seeking confirmation to the U.S. Supreme Court. Kagan has never been a judge, and her record on legal matters is difficult for senators to assess. She's expected to face some pushback from Senate Republicans.
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Senators Judge Kagan's Supreme Court Aptness

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Senators Judge Kagan's Supreme Court Aptness

Senators Judge Kagan's Supreme Court Aptness

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It's MORNING EDITION, from NPR News. I'm Lynn Neary.


And I'm Renee Montagne.

We begin this morning with two reports on Elena Kagan, President Obama's nominee to fill the Supreme Court vacancy.

Kagan won Senate confirmation to serve as the nation's solicitor general just 15 months ago. Now she's returning to the corridors of the Capitol, this time seeking support for a lifetime appointment to the high court.

As NPR's David Welna reports, some Republican senators are already raising doubts about Kagan's resume, just as Democrats are singing her praises.

DAVID WELNA: Since Elena 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, and that's 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.

Here's Minority Leader Mitch McConnell yesterday on the Senate floor.

Senator MITCH MCCONNELL (Republican, Kentucky; Senate Minority Leader): Of course, one does not need to have prior experience as a judge before being appointed to the country's highest court. But it strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience. Ms. Kagan has neither.

WELNA: Kagan did spend a couple of years as a private litigator, though she spent most of her career teaching law. She might've 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 said yesterday that Republicans should decide: Which way is it?

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): So you can on the one hand say, man, did we do a great job. We blocked her nomination - and then on the other hand say, oh, she should've been a judge before we consider her. 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 that this country can offer, and we ought to confirm her.

WELNA: 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 Susan Collins is one of those seven. She's already crossing her party leadership by saying it's actually helpful to have someone on the court who does not have a judicial background.

Senator SUSAN COLLINS (Republican, Maine): 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. So I do not see that as being a problem at all.

WELNA: The Senate's number two Republican, Jon Kyl, also voted to confirm Kagan as solicitor general. But because this is for a lifetime seat on the Supreme Court, he says Republicans will be pushing two new lines of inquiry during Kagan's confirmation hearings.

Senator JON KYL (Republican, Arizona): The first is the year or so that she's been SG: What decisions did she make about taking cases or what the government's position would be in a case? And secondly, we didn't delve really too much into her White House years on the Domestic Policy office 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.

WELNA: The Judiciary Committee's ranking Republican, Alabama's Jeff Sessions, says there will also be a lot more questions about Kagan's bid to limit access of military recruiters to Harvard Law School. It was because of the Pentagon's policy of barring openly gay people from serving.

Senator JEFF SESSIONS (Republican, Alabama): I think that's a big issue that she'll need to talk to American people about and be able to explain why she felt that she could reject the men and women who preserve this republic's freedom from her campus.

WELNA: Still, Sessions thinks Kagan won't face a dragged-out confirmation process.

Sen. SESSIONS: 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.

WELNA: And number two Republican Kyl - whose job is to count votes - does not expect his party to block this nomination.

Sen. KYL: Individuals senators will cast their votes differently. 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.

WELNA: But there will be grounds, Kyl says, for a lot of tough questions.

David Welna, NPR News.

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