President Obama's nominee for the post of solicitor general had her first hearing before the Senate Judiciary Committee Tuesday in what may be a preview of a coming Supreme Court confirmation battle.
Harvard Law dean Elena Kagan's appearance at the Senate came just days after Supreme Court Justice Ruth Bader Ginsburg announced she had undergone treatment for early-stage pancreatic cancer, fueling speculation that a new face could soon appear on the court.
At Kagan's hearing the qualities that have endeared her to students and colleagues at Harvard Law School were on full display, and she appeared to be well on her way to become the nation's next solicitor general.
Kagan's pleasant and easy-going even affable temperament — not to mention her impressive academic resume — appeared to have won her favor with most of the Judiciary Committee members. Kagan would be the first woman confirmed to the position often called the "tenth" Supreme Court justice for its powerful position in directing the cases that are heard before the Court. A committee vote is expected next week.
But today's hearing also doubled as a mini Supreme Court confirmation battle, as Kagan is rumored to be on the ubiquitous "short list" of future candidates for the High Court. The hearing lacked any of the dramatic fireworks that tough Supreme Court fights can bring, likely disappointing conservative activists troubled by Kagan's nomination.
Joined by family and colleagues from Harvard, Kagan walked into her Senate confirmation hearing this morning smoothly — if not quite sure of where she should sit. But after a few reassuring words from Sen. Jack Reed, D-RI, who would soon introduce her, she settled into her chair.
Sen. Arlen Specter, R-PA, a hardened veteran of past Supreme Court fights, noted right away a comment President Barack 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." To that point, Kagan ended her opening statement by saying she agreed with Specter that following the rule of law would be her "most important" responsibility.
Specter questioned Kagan about her work in the late 1980s as a clerk for Justice Thurgood Marshall. He specifically asked her about several memos she drafted for the justice. In one about the role religious groups could play in the counseling of pregnant teens, 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" Justice Marshall and view the cases presented to them as he would. She said she was a "27-year-old pipsqueak working for an 80-year-old legal legend." The whole exchange served as a toe-in-the-water look at the depth to which her past writings will be used to infer what positions she will take if she is elevated to the High Court.
Kagan has never argued before the Supreme Court and her overall courtroom experience is very limited. Republicans on the committee questioned whether she had the background for someone responsible for arguing on behalf of the government in front of the Court.
Sen. Jon Kyl, R-AZ, who criticized her experience, said he was very concerned about her nomination and bluntly 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. Kyl seemed to be the most likely to against Kagan's nomination.
Another issue which would certainly come up in a Supreme Court confirmation hearing was Kagan's 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, she would be expected to vigorously defend government laws and policies that she may personally disagree with. 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.
Kagan wouldn't specifically discuss a case currently before the Supreme Court involving the only enemy combatant on American soil. But Sen. Lindsey Graham, R-SC, did engage with her in a broad discussion about the proper way to handle enemy combatants — a discussion that may very well show where the Obama administration could end up on this controversial case.
Graham and Kagan agreed that there is no provision of civilian law that would allow for the indefinite detention of anyone including an enemy combatant. They also agreed that under military law such a detention would be permissible.
But Graham said in an effort to retain the "moral high ground" it would be important for the administration to create a new judicial body to review these cases. Presumably under this scenario, the first case would involve accused Al Qaeda conspirator Ali Al-Marri. Graham feels it is important to show the world that the United States can lock someone away indefinitely but still go through a judicial process.
After her clerkship with Justice Marshall, Kagan, 48, worked on the Michael Dukakis' 1988 presidential campaign before joining a Washington D.C. law firm. She then 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.