Published February 10, 2009
The woman who would be confirmed as solicitor general in the Obama administration got some pointed questioning Tuesday from senators who may be asked to vote for her for another post -- Supreme Court justice.
Elena Kagan, the Harvard Law School Dean and friend of President Obama, is rumored to be on the "short list" of candidates for the high court and a possible replacement for Justice Ruth Bader Ginsberg, the only woman on the court, left-leaning and in questionable health following pancreatic cancer surgery within just this past week.
Because of that, Tuesday's confirmation hearing at the Senate Judiciary Committee served a duel purpose: to confirm Kagan as solicitor general but also to act as a preview of the Supreme Court battle that may soon come.
Kagan told Sen. Lindsey Graham that she agreed with him that no provision in U.S. civilian law allows for the indefinite detention of anyone, including an enemy combatant, nor that under existing military law would such a detention be permissible.
However, Graham, speaking as a member of the panel not only tasked with Kagan's confirmation but also with creating laws to determine what to do with detainees at the soon-to-be closed Guantanamo prison, said a new judicial body could be created to review those cases.
Graham told Kagan that it would enable the U.S. to retain the "moral high ground" while also showing the world that the United States can lock someone away indefinitely but still go through a judicial process.
While cordial with the lawmakers, Kagan wouldn't specifically discuss a case currently before the Supreme Court involving the only enemy combatant on American soil -- accused Al Qaeda conspirator Ali Al-Marri. As solicitor general, Kagan would be responsible for arguing the Obama administration's position to the court about how to handle Al-Marri, who is currently being held at a Naval brig in Charlestown, S.C.
The limited response may leave something to be desired to opponents of closing Gitmo, but the hearing overall lacked any of the dramatic fireworks that tough Supreme Court fights can bring; likely disappointing conservative activists troubled by Kagan's nomination. In fact, the same attributes that has brought favor on Kagan among the Harvard academic community -- a pleasant, even affable temperament -- appeared to have won her favor with most of the Judiciary Committee members.
Kagan was asked a number of pointed questions about her background and suitability to argue on behalf of the government in front of the Supreme Court.
Kagan has never done so and her overall courtroom experience is very limited. Sen. Jon Kyl, R-Ariz., said he was very concerned about her nomination and told her one "learns by doing." Kagan said her personal attributes of intelligence and earnestness and her experience as a law professor make her qualified for the position.
Kagan was also asked about one issue that could certainly come up in a Supreme Court confirmation hearing -- her efforts to keep ROTC programs off college campuses.
She joined a friend-of-the-court brief in the case that ultimately lost before the high court. As solicitor general, Kagan would be expected to defend government laws and policies with which she may personally disagree. On multiple occasions Kagan said her job was to represent the statues passed by Congress and policies articulated by governmental agencies even if she personally disagreed with them.
Sen. Arlen Specter, R-Pa., a hardened veteran of past Supreme Court fights, noted right away a comment Obama made in 2007 that he wanted to nominate high court justices who had the "heart and empathy" to make rulings on behalf of the disadvantaged. Specter questioned the wisdom of this view and said it was important for all judges and high-ranking Justice Department officials to "follow the law."
Kagan ended her opening statement by saying she agreed with Specter that following the rule of law would be her "most important" responsibility.
Specter also questioned Kagan about her work in the late 1980s as a clerk for Justice Thurgood Marshall, specifically about several memos she drafted for the justice, including one on the role religious groups could play in the counseling of pregnant teens. In it, Kagan wrote that she didn't think any religious group should be allowed to use federal dollars to provide care to pregnant teenagers because they wouldn't be able to do so without injecting religious teaching, a violation of the First Amendment's Establishment Clause.
Kagan admitted upon reflection that it was the "dumbest thing" she had ever heard. On another set of other memos, Specter expressed concern that Kagan believed it was important to deny the review of a particular case for fear that a ruling could lead to the inclusion of ambiguous police testimony in future criminal trials.
Kagan said she did not recall those memos and explained that her role as a clerk was to "channel" the justice she clerked for and view the cases presented to them as he would. She said she was a "27 year old pip squeak working for an 80-year-old legal legend."
Kagan would be the first woman confirmed to the position often called the "10th Supreme Court justice" for its powerful position in directing the cases that are heard before the court. A committee vote is expected next week.
Kagan, 48, worked on the 1988 Michael Dukakis presidential campaign before joining a Washington, D.C., law firm. She spent three years in the early 1990s working at the University of Chicago Law School where she taught with Obama. After serving four years in the Clinton administration she began teaching at Harvard Law School, where she was promoted to dean in 2003.
FOX News' Lee Ross contributed to this report.