The questions will come hard and fast for Elena Kagan, President Obama’s Supreme Court nominee, as her confirmation hearing gets underway Monday. But there will be an added wrinkle beyond the standard thrust and parry over constitutional interpretation and the role of judges in society.
For Congress, it’s an election year, and the hearing provides Democrats and Republicans a platform to make their respective campaign arguments.
To Kagan’s prospective questioners on the Senate Judiciary Committee, that means grand themes could be as vital as substantive legal issues, transforming the hearing into even more of a piece of political theater than usual.
Kagan, 50, the U.S. solicitor general, is in line to replace retiring Justice John Paul Stevens, and Republicans have expressed concern about her lack of judicial experience — she has never been a judge — and her political views.
Even as they grill Kagan, Republicans will continue their assault on the Democratic-controlled Congress, sounding the alarm about what they see as the steadily encroaching reach of the federal government. Kagan will probably face questions about the constitutionality of the sweeping healthcare overhaul and perhaps be asked about the financial regulation bill that could be signed into law in just days.
“The American people are not happy with the expanding power of the federal government,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee.
Democrats will seek to frame the GOP as the party that favors corporate interests, which could mean plenty of references to BP and the oil spill in the Gulf of Mexico, even though its relevance to the proceedings is tangential at best.
More to the point, both sides will discuss at length the Supreme Court’s decision this year in Citizens United vs. the Federal Election Commission that erased limits on corporate and union spending on political ads. Democrats will cite it as an example of a conservative high court run amok. Republicans largely view campaign finance regulation as an affront to free-speech rights.
Kagan, while an advisor in the Clinton White House, worked on campaign finance legislation in concert with Congress, and as solicitor general, she argued — and lost — the Citizens United case on behalf of the Obama administration. Senate Minority Leader Mitch McConnell (R-Ky.) has been a fierce critic of Kagan on the issue.
President Clinton also made gun control a legislative priority, and Kagan is expected to be heavily questioned about her role crafting an order restricting the importation of semiautomatic weapons, as well as her views on the 2nd Amendment.
Obama aides, however, emphasize that Clinton’s policy views can’t necessarily be ascribed to Kagan.
“She worked for the president of the United States. She was not the president of the United States,” said David Axelrod, senior advisor to the president. “That’s a key difference.”
Sessions has promised to press Kagan on her role in a controversy over military recruitment at Harvard University while she was dean of its law school. Republicans say Kagan banned the military from recruiting law students because of the Pentagon’s “don’t ask, don’t tell” policy — in defiance of federal law. Kagan’s supporters say she relented once it was clear that her position had no legal support.
Republicans have stayed away from suggesting that they will filibuster Kagan’s nomination, though neither Sessions nor McConnell has ruled it out. With 57 Democrats and two independents in the Senate, and with a number of prominent legal conservatives supporting her, Kagan’s confirmation appears likely.
Conservative interest groups, however, want the GOP to mount an aggressive campaign against Kagan. “There’s nothing in the Constitution that requires that senators give deference to presidential appointments to the Supreme Court,” said Phillip Jauregui, president of Judicial Action Group.
Kagan’s hearing is expected to last three or four days. A final Senate vote could take place before the end of July.
Jennifer Martinez of the Tribune Washington bureau contributed to this report.