The U.S. Chamber of Commerce will not take a position on the nomination of Solicitor General Elena Kagan to the Supreme Court.
Robin Conrad, executive vice president of the Chamber's National Chamber Litigation Center, said in an e-mailed statement that "our internal endorsement process did not generate a clear consensus that would support either a positive or negative view on her nomination.”
The Chamber has endorsed every Supreme Court nominee since it began reviewing high court picks in 1990 (Harriet Miers, who was nominated by President George W. Bush in 2005, withdrew before the Chamber issued its endorsement decision). The timing of the group's endorsement has varied, but it has always come after the nominee has returned the Senate questionnaire to the Judiciary Committee.
The group's Constitutional and Administrative Law Advisory Committee typically reviews the nominee's record and makes a recommendation. Conrad did not immediately respond to further questions regarding the endorsement process in Kagan's case, but in the past, she has said that the group examines the nominees based on judicial temperament, and their positions on business and economic policy issues. The Chamber endorsed Justice Sonia Sotomayor last year, a week after her confirmation hearing ended, saying that "Through several years of experience as a law firm partner representing business interests, Judge Sotomayor has spent time considering the litigation environment from our point of view."
Makan Delrahim, a former staff director and chief counsel to the Senate Judiciary Committee from 2000 to 2003, under then-Chairman Orrin Hatch (R-Utah), said he doesn't believe the Chamber's decision not to endorse Kagan will effect the Senate vote. "You're not going to get somebody who was going to vote for her or against her to change their view based on a recommendation," he said.
Delrahim, now a partner at Brownstein Hyatt Farber Schreck, said that groups like the Chamber exert the most influence when they take a clear position and declare something a "key vote," which means that lawmakers will be graded on their stance. "Because it's not a scored vote, it's not an issue whether they're endorsing or opposing," he said. Still, he said, the Chamber's decision is significant "because now you have a very important segment of the business community not endorsing this particular nominee of President Obama. But that's not going to be outcome-determinative in any way."
Michael O'Neill, a former staff director and chief counsel to the Senate Judiciary Committee from 2005 to 2008, under then-Republican Chairman Arlen Specter, said that, "effectively what they’re saying is, we’re neutral, but it simply looks like they’re less neutral given the fact that they’ve supported people in the past."