McConnell questions Kagan's independence from Obama administration

McClatchy NewspapersMay 12, 2010 

Senate Republicans on Wednesday got tough on Supreme Court nominee Elena Kagan, as the Solicitor General began a round of visits to members of both parties.

But before she met with Senate GOP Leader Mitch McConnell, McConnell went to the Senate floor and expressed all kinds of concerns.

Kagan, he said, is close to the Obama administration. And she's never been a judge, so there's some question whether she could be independent.

"She's never had to develop the judicial habit of saying no to an Administration, and we can't simply assume that she would," McConnell said.

Kagan began her visits by meeting with Senate Majority Leader Harry Reid, D-Nev., who received her warmly.

After the briefing meeting, he said, Kagan "left me confident that she is the right choice...she has a strong belief that the Supreme court should be a forum where the rule of law wins out and where people from every walk of life can receive a fair hearing." He predicted Kagan "should receive strong bipartisan support."

McConnell was less convinced. "As Solicitor General, Ms. Kagan is a member of the President's Administration. The President on Monday also said that they're 'friends.' And the Vice President's Chief of Staff — who helped oversee her nomination — is evidently hard at work convincing members of the President's party that they will have nothing to worry about in terms of Ms. Kagan's possible appointment," McConnell noted.

That's not necessarily a positive, he argued.

"In our constitutional order, justices are not on anyone's team. They have a very different role to play. As a Supreme Court justice, Ms. Kagan's job description would change dramatically," McConnell said. "Far from being a member of the President's team, she'd suddenly be serving as a check on it. This is why the Founders were insistent that judges be independent arbiters, not advocates."

McConnell did not take a position on the Kagan nomination, and most Republicans have adopted a wait and see stance.

But McConnell persisted in questioning Kagan's independence. "As one of the founders once put it, 'Under a limited Constitution, the complete independence of the courts of justice is peculiarly essential,' … and further, 'there is no liberty, if the power of judging be not separated from the legislative and executive powers," he said.

"So it's my hope that the Obama Administration doesn't think the ideal Supreme Court nominee is someone who would rubber stamp its policies. But this nomination does raise the question. And it's a question that needs to be answered."

"That's the defining characteristic of any good judge, much less a judge on the nation's highest court. And the simple fact is, her lack of a record — especially her lack of a judicial record, and the fact that she doesn't have much of a record as a practicing lawyer either — gives us no way of answering that question at this point with any degree of comfort."

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