Drag out your law school books and sharpen your hair splitters, it’s time for the confirmation hearings of Elena Kagan to take the seat of retiring Supreme Court Justice John Paul Stevens.
It's a well tread path, an extraordinary five hearings in as many years to fill openings on the high court, a partisan path paved with contentious moments and little success by Judiciary Committee members in trying to pry open the dark recesses of the nominee’s mind to find out what he or she is made of.
Kagan said it herself in a 1995 law review article calling the hearings “a vapid and hollow charade.” And she speaks with some hands-on experience. For a brief time, she served on the committee when then-Sen. Joe Biden, D-DE, was chairman, to help shepherd the nomination of Ruth Bader Ginsberg, now a sitting justice.
The fault lines seem clear, and while Republicans are expected to raise a lot of serious concerns about the nominee, Democrats are expected to get the 60 votes they need to confirm Kagan, barring any landmine revelations.
Kagan, the current Solicitor General, has little courtroom experience and has never been a judge, a fact that will figure as one primary line of attack for Republicans. Democrats will quickly remind their GOP colleagues that the late Supreme Court Justice William Rehnquist, among others, was not a member of the so-called “judicial monastery”, either.
The strongest line of attack against Kagan is shaping up to be one against what Republicans see as her liberal career choices, serving a good deal of her work life as a political operative. Republicans have also pointed to her choice of clerkship for liberal Supreme Court Justice Thurgood Marshall, a Kagan mentor, as evidence that she is really a liberal in a moderate’s clothing.
Republicans have pointed out her own words penned at the side of memos to President Bill Clinton, to whom she served as a domestic policy adviser, that seem to indicate a liberal bias. But in her confirmation hearings to be Solicitor General, when similar documents were revealed, she said she was merely channeling her boss’ views.
“I can accept that she’s liberal. She has a liberal activist background politically,” Sen. Lindsey Graham, R-SC, a key Judiciary Committee member, said on Fox News Sunday, adding, “I need to be sure that her activist background will not be taken to the court.”
Ironically, liberal groups are also looking upon this nominee with a questionable eye, as well, noting her both her past support for a ban on partial birth abortions and for strong executive powers.
“I believe the drift net has been out to find some disqualifying factor and it hasn’t been found,” Sen. Dianne Feinstein, D-CA, a senior committee member, declared on Fox News Sunday, saying Kagan is “superbly qualified.”
Another concern for Republicans is Kagan’s time as dean of the Harvard Law School during which military recruiters were banned from the main part of campus, with Kagan opposing the military’s ban on gays serving openly.
Committee Chairman Patrick Leahy, D-VT, has repeatedly dismissed this concern, saying those students who wanted access to military recruiters could easily go off campus to get to them and that Kagan was merely upholding a Harvard policy.
But John Ullyot, a long time Senate GOP staffer who was a Marine officer candidate at Harvard during Kagan’s tenure, strongly disagrees. “I think that Kagan’s pushing the Harvard position on this so hard, right up to the Supreme Court, shows she has a tendency to confuse her personal policy views with the law,” Ullyot told Fox.
The Supreme Court struck down the Harvard ban unanimously.
It is likely Kagan will get very little GOP support when all is said and done. The top Republican on the committee, Jeff Sessions of Alabama, opposed her nomination for her current job, along with committee member Chuck Grassley of Iowa, who will take the helm of the committee next year. Nine Republicans, in total, supported her for Solicitor General in 2009, including three committee members.
Keep your eyes and ears on those members during the hearings: Sens. Jon Kyl, R-AZ, Orrin Hatch, R-UT, and Tom Coburn, R-OK. Also – Lindsey Graham, R-SC, who was absent for the committee vote, spoke positively about Kagan and always, as a military lawyer, serves a crucial role in ferreting out nominee positions on national security issues.
Certainly one rare moment of bipartisanship will come in the continued fascination members have with that 1995 article that every member seems to have read. In it, as Kagan reviewed Stephen Carter’s A Confirmation Mess, she said of the hearings, "Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues. Senators have not done so since the hearings on the nomination of Judge Bork. They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner."
To be sure, members expect more of Kagan as a result. Whether or not they will get it, remains to be seen. One committee member, Republican-turned-Democrat Arlen Specter of Pennsylvania, opposed Kagan for her current job for that very reason, her refusal to provide enough detail about positions. In a Senate floor speech at the time, Specter, who has said he is open to supporting her Supreme Court nomination, said, ""I think it is pretty plain that Dean Kagan will be confirmed. But I do not articulate this as a protest vote or as a protest position, but one of institutional prerogatives. We ought to know more about these nominees. We ought to take the confirmation process very seriously."
The hearings will consume the balance of the week, with the committee voting as early as next week. Keep in mind, this committee is divided 12 Democrats to seven Republicans, so the outcome is a near certainty. The full Senate would then take up the nomination likely the week after the July Fourth recess.