Judging Supreme Court nominee Elena Kagan: Cast of graybeards, rising stars, even a lame duck

Published June 27, 2010

| Associated Press

WASHINGTON (AP) — A cast of graybeards, rising stars and a lame duck once in charge convenes Monday as the Senate Judiciary Committee to consider giving President Barack Obama's Supreme Court nominee, Elena Kagan, a lifetime appointment as a justice.

This collection of 12 Democrats and seven Republicans can ask Kagan questions on virtually any topic — or pontificate or crack wise — during what amounts to a nationally televised job interview.

But it's not entirely about the nominee. The lawmakers themselves are some of the nation's best political performers, and five are campaigning for re-election.

What's new is the experience level of committee members. Three have chaired confirmation hearings before. There are no rookies; even the junior senators toward the end of the dais participated in the questioning last year of Obama's first nominee for the high court, Sonia Sotomayor.

One of the Senate freshmen, Delaware Democrat Ted Kaufman, has been involved in hearings for a dozen nominees to the high court, counting Kagan; that's from his long service to Joe Biden, now the vice president but before that a Delaware senator who once led the Judiciary Committee.

The atmospherics, too, are different.

Unlike Sotomayor's hearings, Kagan's are taking place in an election year in which 36 seats in the Senate are up for grabs. Six are held by committee members.

For Democratic Sen. Arlen Specter of Pennsylvania, a former chairman, Kagan's hearings could be the last. Specter lost this year in a primary.

The other five seeking new terms are not in particularly tough races, but could spend their question time on subjects important to their party bases.

Expect Democrats to promote Kagan's pragmatic streak and her legal acumen. She's an Ivy League scholar, former Harvard Law School dean, presidential counselor in the Clinton White House and current solicitor general, the government's top lawyer before the high court.

Republicans are examining her experience from other angles.

She's never been a judge. As an adviser to President Bill Clinton, she showed a political shrewdness that GOP lawmakers say isn't appropriate for an impartial justice. Most of all, they've taken aim at Kagan's brief refusal to give military recruiters access to the law school's career services office, over the "don't ask don't tell" policy against openly gay soldiers.

A look at some of the players expected to take up screen time during this week's hearings.

GRAYBEARDS

The senators arranged by seniority around the horseshoe-shaped dais include several with decades of experience in confirmation hearings to the high court.

—Chairman Patrick J. Leahy, D-Vt., 70.

He's third-most senior of 100 senators, a former state prosecutor who might otherwise have made a living as a photographer. He tends to run the committee with a strict gavel and a wry sense of humor. Leahy led Sotomayor's hearings last summer and has participated in every such proceeding since President Ronald Reagan nominated Sandra Day O'Connor in 1981.

In the past, Leahy has shown impatience with colleagues who talk past their allotted time. But he's also ignored the clock to offer comment, cut off his colleagues, rebut them and otherwise expound. As chairman, he can.

Up for re-election, Leahy is less likely than ever to hold back, though he is not facing any serious competition for his seat. Outside the Senate, Leahy can be spotted on a playground in suburban Virginia with some of his five grandchildren and relishes time at his 300-acre farm in Vermont.

—Sen. Orrin Hatch, R-Utah, 76.

The lanky, silver-haired Hatch has twice served as committee chairman and participated in hearings for 13 high court nominees, beginning with O'Connor. He voted to confirm Sotomayor to the federal bench in 1998, then against her last year. She was the first Supreme Court nominee he declined to endorse. He said he had doubts that she would rule according to the Constitution.

A great-grandfather and songwriter adept at the piano, organ and violin, Hatch is known for his conservative judicial philosophy and his staunch defense of the troubled nominations of Robert Bork, who was not confirmed and Justice Clarence Thomas, who was.

He has said he generally believes presidents should be given deference to their nominees.

—Sen. Arlen Specter, D-Pa., 80.

Specter is both a graybeard and a lame duck. The grandfather of four has chaired as many confirmation hearings as Leahy and has a half-century legal and senatorial career behind him. But that's the key: It's behind him now.

After switching parties last year, Specter lost last month in his bid for a sixth term.

Given that, he's considerably less accountable than his colleagues. But Specter's never been predictable or shy in his dealings with nominees, colleagues, presidents or reporters.

In speeches and statements, and in letters to Kagan, Specter has complained that the high court has curtailed Congress' power in a series of recent decisions. He's tired, he said on the Senate floor, of hearing "lip service" from nominees on this point.

"Let's sharpen our lines of questioning, colleagues, as we move forward to the hearings on Solicitor General Kagan," Specter said.

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OPPOSING COUNSEL

Sen. Jeff Sessions, R-Ala., 63.

The former federal prosecutor cut his teeth in this role in the Sotomayor hearings. Then, there was some whispering as to whether the soft-spoken Southern partisan was up to the job of succeeding the sharp-edged Specter in the lead GOP role, and going nose to nose with Leahy.

Leading the minority means that even if every Republican votes against Kagan, her nomination still would advance to the full Senate. But this is an election year, which means Sessions must perfect his role reassuring the Republican base that their interests are being represented in such a high profile forum.

He'll lay out the Republicans' doubts about Kagan and dole out specific lines of questioning to the other six Republicans on the committee — from whether she harbors disdain for the military to whether she allows politics to bear on her decisions.

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THE PURIST

Sen. Tom Coburn, R-Okla., 62.

Socially conservative viewers looking for reassurance this election year might tune in toward the end of each round of questions, when this cowboy boot-wearing obstetrician takes the microphone. Coburn, a grandfather of five who is up for re-election, scored a 100 percent approval rating last year from the American Conservative Union. He tends to focus on subjects like abortion and gun rights.

But Coburn has served notice this year that he is concerned with Kagan's focus on international law during her career, from Harvard to the solicitor general's office.

"I believe significant questions have been raised as to whether Kagan, like Sotomayor, will use foreign law if confirmed," Coburn wrote on his web site.

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THE RISING

The four most junior committee members are freshman Democrats for whom Sotomayor was their first Supreme Court nominee as senators. They sit at the end of the dais and often have their questions swiped by more senior colleagues.

But they are a year more experienced at the business of confirmation and their array of experience in law, engineering and entertainment make them worth watching.

Sens. Sheldon Whitehouse of Rhode Island and Amy Klobuchar of Minnesota are lawyers and former prosecutors. Whitehouse, 54, is considered one of the Democrats' most articulate senators. Klobuchar, 50, has been teased about being nominated to the high court herself.

Kaufman, 71, is an engineer by education who joined Biden's Senate staff in 1973 and served as his top aide for nearly two decades. As such, he was involved in Biden's deliberations over 10 nominees to the high court.

Everybody knows entertainer-turned-senator Al Franken of Minn., who was sworn in last year just before the Sotomayor hearings. In a speech this month to the American Constitution Society, Franken, 59, said that it's conservatives, not liberals, who have become activist judges.

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Online:

Senate Judiciary Committee: http://judiciary.senate.gov/

Supreme Court: http://www.supremecourt.gov/

Obama's nomination of Kagan: http://tinyurl.com/2aq5jc6

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http://www.foxnews.com/us/2010/06/27/judging-supreme-court-nominee-elena-kagan-cast-graybeards-rising-stars-lame/