WASHINGTON — Initial signs Monday pointed toward a tame, perhaps even smooth, Senate confirmation process for Solicitor General Elena Kagan, whom President Barack Obama nominated to succeed retiring Justice John Paul Stevens on the Supreme Court.
To be sure, any path to confirmation is riddled with potential pitfalls, and so far, a few have surfaced: Kagan’s limited courtroom experience, her effort as dean of Harvard Law School to bar military recruiters from campus and concerns among liberals that she may not be a reliable vote.
However, independent analysts thought that none of those concerns appeared likely to derail her nomination, particularly in a Senate in which Democrats control 59 of 100 seats.
“If that’s all they can come up with, she should be fine,” said Thomas Keck, a professor of constitutional law and politics at Syracuse University.
The Senate Judiciary Committee, which has 12 Democrats and seven Republicans, will consider Kagan’s nomination first. She starts with an advantage: She was confirmed for her current job last year 61-31, with seven Republicans backing her.
“Not much has changed since then, other than this is life tenure,” said Susan Low Bloch, a professor of law at Georgetown University Law School. She termed Kagan’s confirmation prospects excellent.
Kagan, 50, would be the first justice in nearly 40 years who didn’t ascend directly from the bench. Her resume includes stints as clerk to former Justice Thurgood Marshall and to federal appellate Judge Abner Mikva, a key Obama mentor.
Kagan also was special counsel to the Senate Judiciary Committee in 1993, helping Chairman Joe Biden, who's now the vice president, during Justice Ruth Bader Ginsburg’s confirmation. She was part of President Bill Clinton’s White House counsel’s office and domestic policy team, as well as a University of Chicago law professor. She also practiced private law for two years in Washington.
Obama lauded Kagan on Monday as a consensus-builder for a court that’s split routinely 5-4.
“Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness for a broad array of viewpoints,” Obama said. Kagan, standing beside the president in the White House East Room, said she was “honored and humbled by this nomination.” Some Republicans who were seen as possible supporters were circumspect Monday.
“Judicial qualifications go beyond legal experience,” said Sen. Orrin Hatch, R-Utah, a senior Judiciary Committee member who met privately with Obama last week.
Sen. Lindsey Graham of South Carolina, one of nine Republicans who backed Obama nominee Sonia Sotomayor last year, offered praise, citing Kagan’s “strong academic background in the law,” and adding he’s been “generally pleased with her job performance as solicitor general.”
One Republican, Oklahoma Sen. James Inhofe, said he'd oppose Kagan, citing her “lack of impartiality when it comes to those who disagree with her position.”
Others said they'd look closely at Kagan, and warned that last year’s confirmation shouldn’t be seen as necessarily leading to the same result.
“The standard of scrutiny is clearly much higher now,” said Senate Republican leader Mitch McConnell of Kentucky, explaining that there’s a difference between being the administration’s top trial attorney as solicitor general and getting a lifetime appointment to the nation’s highest court.
Kagan would be the fourth woman ever appointed to the high court, and the third serving there next term, joining Ginsburg and Sotomayor. Kagan would be the court’s youngest member and its third now-sitting Jewish justice, along with Ginsburg and Stephen Breyer.
Kagan is expected to visit senators over the next few weeks. Committee hearings are likely in early summer, and Judiciary Committee Chairman Patrick Leahy, D-Vt., predicted that the Senate would act by early August “so she can be sitting on the court when it comes back into session” in October.
Flash points began to emerge Monday.
Sen. Jeff Sessions of Alabama, the committee’s top Republican, said that Kagan’s lack of courtroom experience troubled him.
As the nation’s first female solicitor general, a job she's held since March 2009, Kagan represents the Obama administration before the Supreme Court and supervises the government’s cases in lower appellate courts.
Kagan has argued before the high court half a dozen times, starting last September with her unsuccessful defense of a campaign finance law that restrained corporate campaign spending. The court also rejected Kagan’s defense of a law that made it a crime to sell videos that depict animal cruelty. It hasn’t yet ruled in several other cases that she argued.
McConnell was unimpressed.
“It strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience,” he said, noting that former Chief Justice William Rehnquist, who wasn’t a judge before he joined the court in January 1972, had been in private law practice for 16 years.
Sen. Amy Klobuchar, D-Minn., a Judiciary Committee member, saw a different comparison, however.
“Like former Chief Justice Rehnquist, she comes to the court with experiences different than those of a judge. I think it is healthy for the court to have one at least justice from outside what has been termed the ‘judicial monastery,’ ” Klobuchar said.
Kagan, Harvard Law’s dean from 2003 to 2009, is expected to be grilled about her view that the military’s "don’t ask, don’t tell" policy is unfair to gays and lesbians. Obama plans to end the policy, which bans gays and lesbians from serving openly in the military.
In 2004, after an appellate court ruling, Kagan banned the military from using the law school’s recruiting office, though it had access through a student veterans group. When the Pentagon threatened to withhold funding from all of Harvard in retaliation, not just the law school, she relented and allowed the recruiters to use the office. Sessions said her actions “need to be addressed.”
Ron Klain, Biden’s chief of staff and a Kagan friend, on Monday offered a detailed defense of her action, saying that any suggestion that Kagan was anti-military is “ridiculous and absurd.”
Kagan also could face stiff questions from a bloc that's usually friendly to the Obama administration: liberals.
“They don’t know her,” Georgetown’s Bloch said. “She’s not as liberal as others he could have chosen.”
Klain argued that Kagan is “clearly a legal progressive” with a “pragmatic perspective,” but some interest groups were quick to voice concern.
“Her public record reveals very little about her judicial philosophy or her views on the constitutional protections in Roe,” said Nancy Northup, the president of the Center for Reproductive Rights, referring to Roe v. Wade, the 1973 Supreme Court case that legalized abortion.
One of the more unpredictable forces that are driving the confirmation process is likely to be politics, so soon before November’s congressional elections. Obama’s pick already is having an impact, on the Democratic side.
A month before he switched last year from Republican to Democrat, Sen. Arlen Specter of Pennsylvania failed to vote in the Senate Judiciary Committee on Kagan’s nomination as solicitor general and opposed her on the Senate floor.
Specter now is embroiled in a tough May 18 Democratic primary against Rep. Joe Sestak, D-Pa. On Monday, Sestak’s campaign issued a statement praising Kagan and reminding voters that Specter once voted against her.
G. Terry Madonna, the director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pa., said Specter’s “no” vote on Kagan could hurt him.
“Sestak will nail him on that every chance he gets,” Madonna said.
(William Douglas, Michael Doyle, James Rosen and Steven Thomma contributed to this story.)
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