Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has been a frequent advocate of nominating Supreme Court justices from outside "the judicial monastery." At a news conference, Leahy said Solicitor General Elena Kagan fits the bill.
“Her nomination will bring to the Supreme Court a diversity of experience that’s been missing since Justice O’Connor retired in 2006,” said Leahy, alluding to retired Justice Sandra Day O’Connor’s experience as a justice on the Arizona Supreme Court and state legislator.
Leahy said that “some of the great justices in American history” were elevated to the Court from somewhere other than the U.S. Court of Appeals. He named Justices Hugo Black, previously a senator, Louis Brandeis, who had been in private practice, and Felix Frankfurter, who had been a law professor.
“It was only in recent decades that the justices were all from the federal courts,” he said. “Some of our most dynamic courts have been those where they came from different backgrounds.”
Leahy, who will chair Kagan’s confirmation hearing, did not give a date for the hearing to begin. But he said senators’ jobs will be easier given that Kagan went before the committee last year for confirmation as solicitor general. “The questions become the same. You’re talking about one’s legal ability, one’s legal background,” Leahy said.
The top Republican on the Senate Judiciary Committee is focusing his early criticism on Elena Kagan’s role at Harvard Law School in banning military recruiters from campus.
Kagan, as dean, supported the law school’s policy of banning recruiters if they represented organizations in violation of the school’s antidiscrimination policy. Because the military does not allow gays and lesbians to serve openly, the policy applied to military recruiters until Congress, with the support of the Supreme Court, threatened to withhold funding from the school.
“I do not believe it was acceptable for her to say, ‘You can’t even come on our campus, because I disagree with you,’” said Sen. Jeff Sessions (R-Ala.), in an interview on CNN.
Sessions said the committee’s Republicans will be looking over Kagan’s speeches and writings, as well as her record as solicitor general, in lieu of any judicial record. Sessions voted against confirming Kagan as solicitor general.
Sen. Jon Kyl (R-Ariz.) voted to confirm Elena Kagan as solicitor general, but the Senate’s No. 2 Republican said today that he would not necessarily support her for the Supreme Court.
“As I made clear when I supported her confirmation as Solicitor General, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl, the Senate GOP whip and a member of the Judiciary Committee, said in a statement.
In the statement, Kyl also said that each senator “has a constitutional duty to scrutinize judicial nominees, and I will take great care in examining her record to ensure that she possess the qualities the American people expect in our Supreme Court Justices. I expect Senate Democrats will allow ample time for the Senate to conduct this vetting process.”
Kyl, in an appearance on Fox News, added that he’d be exploring her “lack of experience.”
Like Kyl, Sen. Orrin Hatch (R-Utah) said that Kagan cannot count on his support based only on Hatch’s vote to confirm her as solicitor general.
“I will examine Ms. Kagan’s entire record to understand her judicial philosophy. My conclusion will be based on evidence, not blind faith,” Hatch, a former Judiciary Committee chairman, said in a statement. “I have an open mind and look forward to actively participating in the confirmation process.”
Hatch also said that “the more important qualification is judicial philosophy and a nominee’s understanding of the power and proper role of a Justice in our system of government.”
Though he’s the Judiciary Committee’s second-ranking Democrat, Sen. Herb Kohl (D-Wis.) is among those calling on Elena Kagan to expound on her own judicial philosophy.
In a statement, Kohl today referenced a law review article in which Kagan argued for Supreme Court nominees to be more forthcoming during the Senate confirmation process. (Kagan advised then-Sen. Joe Biden (D-Del.) during the confirmation hearing for Justice Ruth Bader Ginsburg.)
“In light of her critique of Supreme Court confirmation hearings as often times a ‘vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,’ we certainly do hope that she will provide us with substantive and meaningful insight into the kind of Supreme Court Justice she would be,” Kohl said.
Kohl said Kagan “appears to be a well-qualified choice.”
Sen. John Cornyn (R-Texas) is questioning whether President Barack Obama followed his own advice in choosing a successor to Justice John Paul Stevens — and in doing so, he’s taking a shot at some bastions of America’s elite.
“There is no doubt that Ms. Kagan possesses a first-rate intellect, but she is a surprising choice from a president who has emphasized the importance of understanding ‘how the world works and how ordinary people live,” Cornyn said in a statement.
“Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the DC Beltway. These are not places where one learns ‘how ordinary people live,’” Cornyn said.
A former state attorney general and justice on Texas’ highest court, Cornyn voted against confirming Kagan as solicitor general. “Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general,” he said in today’s statement. “This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions.”
As a special counsel in the Senate during Ginsburg’s confirmation hearing, Kagan worked with another staffer who is now a member of the Senate Judiciary Committee: Sen. Ted Kaufman (D-Del.).
“I had the good fortune to get to know her in that context when I was then-Senator Biden's chief of staff,” Kaufman said today in a statement. “Based on that experience and everything I have seen since, I am absolutely convinced that she not only possesses enormous intellect and consummate skill, but is a person of the highest character and unquestioned integrity.”
Kaufman, who was appointed to Biden’s seat in the Senate, noted the accolades Kagan received as dean of Harvard Law School.
“As dean, she was lauded by faculty, students, and alumni across the political spectrum for her ability to bridge disagreement by listening to all sides of an argument, engaging honestly with everyone concerned, and making decisions openly and with sound reasons,” Kaufman said. “She will bring her ability to build coalitions to a Supreme Court that is too often divided, which will serve the American people well.”
Sen. Arlen Specter (D-Pa.) said he’s open to supporting Kagan for the Supreme Court, despite his vote last year against confirming her as solicitor general.
“I voted against her for Solicitor General because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice,” Specter, a former Republican chairman of the Judiciary Committee, said in a statement today.
“I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power,” he added.
Updated at 12:32 p.m.