Republicans, who decided early on that they stood little chance of defeating Supreme Court nominee Elena Kagan, settled instead on making her confirmation process a “teachable moment” to highlight the dangers of liberal judicial activism.
But even that modest goal has proved difficult to achieve in the run-up to the opening of her confirmation hearings on Monday, especially with a nominee as elusive as Kagan, whose ascent to the high court hardly seems in doubt.
They’ve had to compete with the BP oil spill for public attention, and on Tuesday — the first day of Kagan’s Q & A — Gen. David Petraeus heads to the Hill to explain the abrupt change of command in Afghanistan.
And while the “wise Latina” comment became a focal point for opponents of President Barack Obama’s first Supreme Court nominee, Sonia Sotomayor, no similar statement has emerged from the ultra-cautious Kagan to crystallize the opposition.
Still, Republicans have settled on a strategy of painting Kagan, who has never been a judge, as a politically driven ideologue. They insist they haven’t ruled out a filibuster, though that seems highly unlikely.
“I think a recurrent theme will be: Here you have a person who has been deeply involved in policy-politics most of her life — without a judicial record to demonstrate that she can put that behind her on the bench,” Senate Minority Whip Jon Kyl (R-Ariz.), a Senate Judiciary Committee member, told POLITICO. “And therefore she’s got a burden of proof to find other ways to assure us that she will decide cases just based on the facts — and not just based on the politics.”
Democrats plan to steer the conversation away from Kagan and toward the existing Supreme Court, which they believe has gone out of its way under Chief Justice John Roberts to overturn congressional judgments and long-standing legal principles.
“Here’s a woman who understands the Constitution, understands the law, understands the effect of their decisions on ordinary, hardworking Americans and I predict she will be confirmed,” Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) said last week.
Here are five things to watch this week:
Specter and Graham: Wild cards
Activists on both sides of the confirmation fight are keeping a close eye on two Judiciary Committee members who each could be something of a wild card: Sens. Arlen Specter (D-Pa.) and Lindsey Graham (R-S.C.).
Specter is the only Democrat on the committee to have already cast a vote against Kagan. After sparring with her last year over what he contended were less-than-forthcoming answers, Specter, then a Republican, voted against her confirmation as solicitor general.
Now Specter’s a Democrat but also a lame duck as a result of losing a primary challenge to Rep. Joe Sestak (D-Pa.) last month, so he has little incentive to play nice with a White House that largely abandoned him at the end of the primary.
It doesn’t help that Kagan’s notes, unearthed from the Clinton Library, about a 1995 Specter hearing on the FBI’s killing of white separatist Randy Weaver, show her describing Specter as “fair” but adding, “mean-spirited/nasty to everyone.”
The notes are cryptic — she may have simply been recording someone else’s views — and Specter suggested last week his vote is still in play. Asked if he were a wild card, Specter quipped, “I wouldn’t say that — I’m a very tame card.”
Last year, Graham was the lone Republican on the committee to vote for Sotomayor’s nomination. But that might be tougher to do with Kagan, as the South Carolina Republican Party has moved even further right.
“If we as Republicans think it’s OK as a judge to support conservative causes, work in conservative administrations, we have to be willing to accept Democratic nominees who support liberal candidates and liberal causes,” Graham said. “The question for both camps is: Is this person so far into the Kool-Aid politically they can’t be a judge?”
If one aspect of timing does work to Republicans’ advantage, it’ll be the issue of guns. On Monday, the Supreme Court is expected to issue a long-awaited ruling on whether the Second Amendment right to bear arms applies to the states and local governments, which could give Republicans a hook to press Kagan on what they see as her hostility to gun rights.
“There are a lot of things throughout her record that indicate that she’s got a very liberal ideology,” said Curt Levey of the Committee for Justice. “There’s probably no issue where there are more examples of that than on the Second Amendment.”
Kagan also will face questions about her 1996 notes from the Clinton administration that gun control opponents say show her making parallels between the National Rifle Association and the Ku Klux Klan.
The White House contends Kagan was just taking notes on what another attorney told her about a debate over pending legislation, but acknowledged Friday that the looming gun ruling could provide “fodder” for questions.
“There has been some effort to try to contrive a little bit of controversy on that point,” said White House counsel Bob Bauer, who said the charges are “rather lacking in merit.”
“Don’t ask, don’t tell” and Harvard
Kagan’s critics plan an intense focus on Kagan’s move to deny military recruiters use of Harvard Law School’s career center while she was dean there — an action the GOP believes will be tough to explain to average Americans — and on the military’s policy barring gays from serving openly in the military.
Democrats say Kagan made some efforts to accommodate recruiting on campus, even as she booted recruiters from official university channels — and ultimately used the same military recruitment practices that had been used successfully for years under her predecessor. Leahy suggested an air of desperation surrounding GOP criticism. “We see a lot of people ... grasping at straws,” he said.
Will Kagan’s confirmation critique come back to haunt her?
Every time Kagan dodges or weaves during this week’s hearing, senators will have a strong retort: her own words.
In a 1995 book review, Kagan blasted recent Supreme Court confirmation hearings as “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” She suggested the confirmation hearings for Justices Ruth Bader Ginsburg and Stephen Breyer were tame and that the nominees should have answered tough questions.
Other Democrats say no one should expect Kagan to be far more open than other recent nominees. But look for Kagan’s article on the “Confirmation Mess” to be mentioned quite often.
Any heat from the left?
While conservatives paint Kagan as a doctrinaire leftist, reception to her nomination in liberal legal circles has been mixed. Some African-American organizations have been slow to endorse her. Civil libertarians are wary of her views on executive power, while church-state separation advocates and gay activists have expressed concerns that Kagan might view religiously motivated discrimination as immune from state regulation.
What’s far from clear is whether any Democratic senators will pick up on that skepticism or whether they’ll form a cocoon of sorts around the Democratic nominee. Judiciary Committee members who might put a little heat on Kagan from the left include Sens. Russ Feingold of Wisconsin, Sheldon Whitehouse of Rhode Island and Ted Kaufman of Delaware.