At Confirmation Hearings, GOP Eyes Kagan's Record 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.

At Confirmation Hearings, GOP Eyes Kagan's Record

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


That's NPR's legal affairs correspondent Nina Totenberg, who also today reports on the Supreme Court nomination of Elena Kagan. Hearings are set to begin this afternoon, and Nina prepared this preview.

NINA TOTENBERG: Kagan's supporters admit privately that if there's 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 nearly two months, 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 White House tenure, and her deanship at Harvard Law School. All preview the GOP lines of attack. Here's Republican John Cornyn of Texas.

Senator JOHN CORNYN (Republican, Texas): We know she has served extensively and repeatedly as a political operative, adviser and a policymaker - quite a different job than that which she will assume should she be confirmed.

TOTENBERG: And Utah Senator Orrin Hatch.

Senator ORRIN HATCH (Republican, Utah): Supreme Court justices have had experience behind the bench as a judge, before the bench as a lawyer, or both. Ms. Kagan has neither.

TOTENBERG: 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. Here's the ranking Republican on the Senate Judiciary Committee, Alabama's Jeff Sessions.

Senator JEFF SESSIONS (Republican, Alabama): Isn't it true that a person's heroes tell a great deal about who they really are?

TOTENBERG: Indeed, Marshall, Mikva and Barak do have liberal judicial records. But the only one Kagan has singled out repeatedly as her hero is Justice Thurgood Marshall, the architect of the nation's civil rights legal revolution, and the man who argued and won Brown versus the Board of Education.

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's also heaped on conservative speakers at Harvard, like Justice Antonin Scalia.

Undoubtedly, the principal line of Republican attack this week will be the assertion that Kagan, as dean, was anti-military. Again, Senator Sessions.

Sen. SESSIONS: She gave big law firms full access to recruit bright, young associates, but obstructed the access of the military as it tried to recruit bright, young JAG officers to support and represent our soldiers.

TOTENBERG: 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'll 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 emails 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 nominees during their Supreme Court confirmation hearings. The process, she wrote, has taken on a, quote, "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.

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

Her handlers are trying to get her to slow down her answers, to take time to think before replying, and 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. Michael Berman.

Mr. MICHAEL BERMAN (Political Advisor): To prove to people that you know more than they do, just like in any human endeavor, doesn't do you any good.

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

Nina Totenberg, NPR News, Washington.

Copyright © 2010 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.