The Kagan Hearings: Five Things to Watch

By Carrie Dann
|  Monday, Jun 28, 2010  |  Updated 1:03 PM EDT
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The Kagan Hearings: Five Things to Watch

ASSOCIATED PRESS

Supreme Court nominee Elena Kagan smiles on as she takes her seat on Capitol Hill in Washington, Monday June 28, 2010, prior to the start of her confirmation hearing before the Senate Judiciary Committee. (AP Photo/Susan Walsh)

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WASHINGTON - Anyone who has devoured a good book or been glued to a compelling movie — even while already knowing how the story will end — already understands why a committee room in the Hart Senate Office building will be packed to capacity this week.

It's hard to find a political operative in the know, Republican or Democrat, who would place a bet against Elena Kagan's eventual confirmation as a Supreme Court justice.  But her likely success as a nominee does not mean this week's debate over the former Harvard Law School dean and U.S. Solicitor General's confirmation to the high court isn't worth watching.

Senators will thrash out exactly what they think it takes to join one of the most exclusive posts in government, and they're almost sure to examine what the Senate's own role in advising and consenting to the president's choices should be.

With the 2010 midterm elections approaching, both sides hope to use the hearings as a canvas on which to paint broad themes about their parties' governing philosophy. The Senate Judiciary Committee has its share of message-savvy members. Sen. John Cornyn, R-Texas, chairs the National Republican Senatorial Committee, dedicated to the election of GOP senators.  Sen. Charles Schumer, D-N.Y., held an equivalent post for Democrats in 2006 and 2008 and is  widely believed to have his eyes on moving up in his party's leadership in 2010 and beyond.

The extent to which the hearings will shape upcoming races may be minimal, at best.  

"The timing of this is not great in terms of the vote becoming a primary issue," said Mark Keam, a former chief counsel to Sen. Dick Durbin. With the ongoing oil spill, the still-uncertain economy, and two wars dominating recent news cycles, Keam said, "the vast majority of Americans are just tuning out."

But Supreme Court hearings always command at least a part of the news spotlight, providing a soapbox for parties and politicians to advance their agendas.  Here are five things to watch in this week's confirmation hearings:

Kagan, the military, and Don't Ask, Don't Tell
A glance through the Republican committee members' floor speeches and prepared witness lists makes clear that Kagan's opponents believe that the issue of Harvard's ban on military recruiters offers them one of their cleanest possible shots at the nominee.

In 2003, when she was the dean of Harvard Law School, Kagan called the military's "Don't Ask, Don't Tell" policy "a moral injustice of the first order."

At the time, the school had a ban against on-campus recruiting by organizations that practice hiring discrimination, but Harvard did not enforce the ban against the military because a federal statute — the Solomon Amendment — would have required the school to give up federal funding if it banned military recruiters.

When an appeals court ruled that the Solomon Amendment was unconstitutional, Kagan immediately required that military recruiters collaborate with a student group rather than use a campus placement center.  The court decision was eventually nullified, but Kagan continued the modified ban until the Department of Defense threatened to pull funding for all of Harvard University. She also signed on to a brief challenging the military's policy; the argument that she backed was later resoundingly rejected by the Supreme Court.

Jeff Sessions, the Republican on the Senate Judiciary Committee who will lead the GOP's opposition against Kagan, argues that her actions as dean "punished [the recruiters] and relegated them to second-class status."  Kagan's opponents appear poised to label her as disrespectful of the rule of law and of the nation's men and women in uniform.

There is at least one Republican who could help shield Kagan against this line of attack early in the hearings, but it's unclear whether he will choose to serve as her rhetorical tackle blocker on the subject. Massachusetts Sen. Scott Brown, along with delegation colleague Sen. John Kerry, will formally introduce Kagan to the committee on Monday. In May, Brown spoke in Kagan's defense on the military recruitment issues, saying that "I do not feel that her judicial philosophy will be hurting the men and women who are serving."

An unlikely 'hero'
Most Americans, unless they're legal scholars or have spent a lot of time in Israel, haven't heard of Aharon Barak.

But his name is likely to come up quite a few times during the next week, as GOP lawmakers try to tie the former Israeli Supreme Court Justice's judicial philosophy to Kagan's.

During nearly 30 years of service on the Israeli high court, Barak worked to expand the court's ability to review and strike down laws. "The history of the law," he said at an event at Harvard University at which Kagan was present, "is the history of adapting law to life's changing needs."

At the same event, Kagan described Barak as her "judicial hero."

Barak's statements about the role of the judiciary are abhorrent to conservatives — former nominee Robert Bork called him "the worst judge on the planet" last week – and so Kagan will undoubtedly be called upon to explain her admiration for him.

Two other names likely to be cited as "activist" judges admired by Kagan are former appeals court Judge Abner Mikva and the late Justice Thurgood Marshall – both of whom employed the young Kagan as a clerk. But Marshall's status as a civil rights icon makes him less of an easy target than the largely unknown Barak.

While Republicans will use their questioning time to probe whether Kagan would be an "activist" judge, Democrats may use the hearing to draw attention to what they see as overstepping on the part of the current court headed by Republican nominee Chief Justice John Roberts.

"Democrats will be trying to use their podiums to say that we've entered an era of conservative activism on the courts," said University of North Carolina law professor William Marshall, who served as Deputy White House Counsel to President Bill Clinton.

A series of recent Supreme Court decisions, most notably one that dramatically loosened rules about how corporations can use their funds to advocate on behalf of political campaigns, has exasperated Democrats who perceive the current court as excessively forgiving of businesses and contemptuous of Congress.  (The government's case in the campaign finance decision, Citizens United vs. FEC, was argued — unsuccessfully — by Kagan as Solicitor General)

Lindsay Graham and other lawmakers to watch
Graham, the South Carolina lawmaker known for his collaboration with Democrats on some flashpoint issues, was the only Republican on the 19-member Judiciary Committee to back Sonia Sotomayor in 2009.   Graham said at the time that, although some of the nominee's statements "bugged the hell out of me," Sotomayor's competence and experience warranted his support.

So far, Graham has given Kagan favorable reviews, particularly on issues pertaining to war and detainee treatment — an area of his particular expertise as a high-ranking member of the Senate Armed Services Committee.

Perhaps most noteworthy has been Graham's defense of Kagan on the issue of military recruiting. "I think I understand her position better," he said after meeting with the nominee in a private meeting in May. "I didn't find her differences with DOD policy to translate that she doesn't admire and respect our men and women in uniform. I didn't find that to be the case at all."

Graham's vote is likely the only Republican committee vote in play, so watch how he questions Kagan. (Worth noting, Graham is not up for re-election until 2014, but some polls have shown that his popularity with the Republican base in his conservative home state has suffered.)

Another lawmaker to watch is GOP Sen. Orrin Hatch, although it appears unlikely that the soft-spoken Utah senator will ultimately vote for Kagan's confirmation.

Hatch, along with committee member Jon Kyl, R-Ariz., was among seven Republican senators who voted to confirm Kagan as Solicitor General last year.

The experience argument
Expect Republicans to press Elena Kagan on what, exactly, qualifies her to serve as a Supreme Court justice.

Kagan's resume inarguably reflects a sharp mind and painstaking professional box-checking throughout her career. But, while impressive, Kagan's resume doesn't quite resemble those of her predecessors.

First of all, unlike the last 10 confirmed Supreme Court nominees, Kagan has never been a judge. The current members of the Supreme Court have, between them, over 75 years of experience as federal appellate judges; the last two confirmed judicial nominees, Sotomayor and Samuel Alito, both spent over 10 years on federal circuit courts.

There's no constitutional requirement that a Supreme Court nominee must have judicial experience. Some of the most revered justices in the court's history, including Louis Brandeis and Reagan appointee William Rehnquist, did not serve as judges — a fact that Democrats are quick to point out.

But Kagan has also not spent decades as a practicing attorney, as Rehnquist did, and her record of pro bono work is notably thin.  The number of meaty articles she has authored for prestigious law reviews can be counted on two hands, leading some critics to grumble that, while Kagan might be a brilliant legal thinker, she might not be a particularly interesting one.

"Republicans want to really get into her experience and try to determine how relevant that experience is for the court," said Steven Duffield, a former chief counsel for Kyl and Judiciary Committee analyst for the Senate Republican Policy Committee. "What has she done to show her capacity to judge?"

The role of the confirmation hearings themselves
Since the spectacular confirmation defeat of outspoken Supreme Court nominee Robert Bork, nominees before the Senate Judiciary Committee have famously demurred when pressed on their political and ideological views. Among the critics of nominees' question-ducking: Elena Kagan.

In a 1995 book review, Kagan criticized recent Supreme Court hearings as "a vapid and hollow charade."  She wrote that the intellectual bobbing and weaving that has largely characterized post-Bork confirmation hearings "takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."

Now that Kagan has been on the confirmation hot seat herself, the idea of answering controversial questions forthrightly in front of lawmakers and blinding television lighting probably doesn't seem as good of an idea.

During her confirmation hearing to become Solicitor General, Kagan walked her 1995 sentiment back when asked to comment on it by Hatch. "I am not sure that sitting here today I would agree with that statement," Kagan responded.

But, still, you're likely to hear that "vapid and hollow charade" line wryly repeated by members of the committee as they try to root out exactly what kind of judge Kagan will be.

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