Play by Play: What to Expect from Elena Kagan's Confirmation Hearings

Sunday, June 27, 2010 - 02:36 PM

You may not have heard much in the last week about Solicitor General Elena Kagan’s Supreme Court confirmation hearings. They start Monday, and usually a Senate Judiciary Committee grilling of a prospective new Justice generates a lot more "pre-trial" buzz than this one has.

For that, thank the lawmakers who worked nearly 24 hours straight to wrap up a high-profile and hard-lobbied deal on Wall St. regulations on Thursday. Thank Gen. Stanley McChrystal, who owned the news cycle for 48 hours after running his mouth then losing his job. Thank BP.

White House political advisor David Axelrod knew it when he briefed reporters by phone Friday. “Because things have been rather dull in Washington, we’ve scheduled these Supreme Court hearings, just to liven the festivities,” he joked.

Then Axelrod got serious. “We also live in an extraordinarily polarized political climate and therefore we are preparing to make a vigorous case” in Kagan’s defense, he said. That defense, of course, is against Republicans on the committee and their supporters outside the Hart 216 hearing room. They will be trying a few different plays to gain traction against a nominee who has largely avoided close scrutiny from the general public so far.

Play #1: Kagan is a politician who wants to don a Supreme Court justice’s robes. Elena Kagan served as Association White House Counsel and as Deputy Director of the Domestic Policy Counsel in Clinton years. That made her one of Bill Clinton’s top lawyers and later, one of his top political advisors. The 160,000 or so pages of documents sent to the Judiciary Committee by the Clinton Presidential Library show Kagan did both with some amount of partisan zeal. Republicans will highlight documents showing Kagan pushed policies that were "bad for Repubs, not Dems!" as she scrawled in the margin of one memo extolling the virtues of a ban on soft money political contributions. They will say she has partisanship in her DNA and that she won’t be able to resist being a liberal judicial activist.

  • Dem Defense: Kagan did her job as a political appointee and that has nothing to do with how she’ll do her job as a justice. She’s a pragmatist, and she has no inherent bias against conservatives. She made it her business to stock Harvard Law School with more conservative voices when she was the dean there, and Republicans admired her for it. Besides, just because you held partisan views doesn’t mean you can’t be fair. Justice Sandra Day O’Connor was Arizona State Republican Senator Sandra Day O’Connor before the Senate backed her in 1981.

Play #2: Kagan has no judicial experience. Republicans will make sure you remember that Elena Kagan has never served as a judge. We’re not sure how she would rule on the critical issues of the day, and she has no paper trail of decisions to provide clues. Can she be trusted?

  • Dem Defense: The country has been waiting for a "real person" to arrive from the court from somewhere other than the “judicial monastery” (as Sen Pat Leahy (D-Vt.) likes to call it.) Kagan is an accomplished lawyer who knows the Supreme Court from her vantage point as Solicitor General. She understands from experience the inherent tension between the executive and judicial branches of government. Hooray for her and for us that she hasn’t spent her professional life musing on legal arguments from the confines of her judicial cloisters.

Play #3: Kagan doesn’t respect the military. You’ve probably heard about Kagan’s decision, as dean of Harvard Law School, to uphold a policy barring the military from using campus facilities for recruiting activities. For Republicans, it was petty retaliation against the military for its "Don’t Ask, Don’t Tell" policy banning gays and lesbians from openly serving in the armed forces. It proves Kagan harbors hostility toward the military and that she values scoring political points over supporting fighting men and women. She also ignored the law setting "Don’t Ask, Don’t Tell" as military policy and ignored another law (the Solomon Amendment) making taxpayer funding dependent on a university’s openness to military recruiters during wartime. The Supreme Court eventually ruled against Kagan’s position, unanimously. Expect Republicans to hit this theme hard, and repeatedly. Also, expect a former military officer with knowledge of the episode to testify against her in the committee.

  • Dem Defense: Elena Kagan didn’t invent the military ban at Harvard, she just enforced it. Military recruiters remained free to operate on and around campus, and they did; recruiters just weren’t allowed to set up shop in certain buildings. While she upheld the Harvard’s policy, Kagan actually worked to find accommodation between student groups, veterans groups, and the military.

Play #4: The Israeli Activist, the "Other Barak" In 2006 Kagan wrote that she considered Israeli supreme court justice Aharon Barak "my judicial hero." Everyone has heroes, but Republicans see this praise as further proof that Kagan worships at the altar of liberal judicial activism. Barak is well known in legal circles for tilting government power in Israel firmly toward the court. He espoused a doctrine essentially allowing the court to negate laws passed by Parliament if judges didn’t think those laws upheld ideas of "justice" and "human dignity." While Barak is not well known in the U.S., his philosophy is quickly making him the GOP’s poster child for judicial activism and arrogance.

  • Dem Defense: Barak was an Israeli judge, not an American one. Kagan may have deep respect for his view on democracy and human rights, but that does not mean she would rule how he would rule. American and Israeli jurisprudence stick to different standards, and Kagan understands the difference. Sure, she admired Barak, but she wouldn’t emulate him on the Supreme Court.


There are sure to be other tactics tucked away in the GOP playbook. Supreme Court confirmation hearings are as much about party ideology as they are about the nominee, so expect questions on abortion, on guns and the Second Amendment, and definitely on the controversial Citizens United campaign finance decision handed down by the Supreme Court in January. That ruling is a First Amendment, free speech touchstone with partisan warfare written all over it. It will come up over the course of the week.

Kagan probably knows what to expect. She is now famous for a 1995 article in which she lamented that Senate confirmation hearings had taken on "an air of vacuity and farce" where lawmakers try to score political points and nominees avoid saying anything substantive. On Friday Axelrod said of Kagan, "In the last week or so she spent several hours a day fielding questions" from mock interrogators at the White House. We’ll see if that pretend hostility has prepared Elena Kagan for the real hostility of Republicans, and whether any of their plays will gain them some political traction.


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