Supreme Court confirmation preview: five hot topics for Elena Kagan

Solicitor General Elena Kagan will be the center of Washington's attention this week at her confirmation hearings to become the 112th Supreme Court Justice. She is President Barack Obama's nominee to take the seat of retiring Justice John Paul Stevens, one of the more liberal voices on the court. At her hearings, liberals will seek assurance that she is truly one of their own, while conservatives will test whether she's acceptably within their definition of the mainstream. Thus far, her candidacy has been a bit of a bore, a recent poll found that 42% of Americans had no opinion about whether Kagan should be confirmed. And confirmation hearings tend to be so carefully stage-managed these days that Kagan herself once called them exercises in "vacuity and farce." But, as Clarence Thomas learned, there is always the potential for them to turn ugly fast.

In recent weeks, Republicans have hardened their rhetoric on Kagan. Senate minority leader Mitch McConnell said two weeks ago that he wasn't ruling out a filibuster. They're arguing that much, too much, of Kagan's career has been spent in politics. If confirmed, Kagan would be the first Justice in nearly 40 years who has no experience on the bench. Thus there is so little known about Kagan; her lack of judicial experience also means a lack of decisions through which her judicial philosophy might be gleaned. Her six academic papers, the memos she wrote while clerking for Supreme Court Justice Thurgood Marshall, the reams of e-mails sent during her tenure as deputy counsel and adviser for domestic policy in the Clinton Administration and, perhaps most importantly, her confirmation hearing to be Solicitor General offer some clues. But Kagan enters her hearing room on Monday a bigger mystery than nearly any other nominee in the past 30 years. Here are five hot topics she will surely be grilled on as Senators try to get to know her better:

1. Gun Rights

Enough has emerged from Kagan's papers to make the National Rifle Association (NRA) very nervous. As a clerk for Marshall, Kagan wrote that she was "not sympathetic" to a constitutional challenge of Washington D.C.'s gun-control law, a law that the court overturned in 2008 in the D.C. v. Heller decision. In her confirmation hearing to be Solicitor General, Kagan reversed herself, saying she would uphold D.C. v. Heller, calling the decision "settled law." Still, Senators are likely to take D.C. v. Heller a step further and ask her about McDonald v. City of Chicago, a case the Supreme Court is likely to hand down on Monday that is expected to overturn Chicago's ban on handguns.

Kagan will also face questions about a paper she wrote in the Clinton Administration that paved the way for an executive order banning dozens of semiautomatic weapons, though the White House argues that she was simply acting as counsel and giving advice, not creating policy. Another two memos found in Kagan's papers related to the Volunteer Protection Act, which, when it passed, shielded some nonprofits' volunteer workers from tort liability in certain cases. In those memos, the Clinton Administration worried that "bad guy orgs" such as the NRA and the Ku Klux Klan might also benefit from the law, though it's unclear if these were Kagan's words or an aide's as the memo is unsigned.

2. Wise Jew?

During her confirmation hearings, Sonia Sotomayor was grilled for once saying that she'd like to see diversity on the court, that she'd rather hear from a "wise Latina" than another bland white guy. Sotomayor was confirmed to be the third woman on the court last year. Kagan seeks to become the fourth woman and the eighth Jew on the court. There is much debate about what President Obama has labeled the "empathy" standard, or how much Justices should be swayed by modern circumstance. Many conservatives contend that all judges should interpret the Constitution according to the founders' intent and that their personal backgrounds should be irrelevant to this pursuit. As Chief Justice John Roberts put it in his confirmation hearings, "It's my job to call balls and strikes and not to pitch or bat." In her master's thesis at Oxford University, Kagan seemed to agree with Sotomayor. "As men and as participants in American life, judges will have opinions, prejudices, values," Kagan wrote. "Perhaps the most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid."

Kagan later lamented that she was just a "dumb" kid when she wrote that thesis. And at her confirmation hearing to become Solicitor General she wrote, "It is a great deal better for the elected branches to take the lead in creating a more just society than for the courts to do so."

3. Abortion

The perennial do-they-or-don't-they question that plagues all Supreme Court nominees: Where do they stand on Roe v. Wade? Pro-life groups are crusading against Kagan, whom they perceive to be pro-choice. Their evidence? A memo she wrote under the Clinton Administration that recommended Clinton support a ban on late-term abortions as long as it included an exception to protect women at risk of injury. The White House argues that, again, Kagan was merely providing advice to the President. "The picture that emerges of Kagan is not that of a staffer who presented the President objective information and disinterested analysis but, rather, a staffer who sometimes presented selective and tendentious information and who employed a variety of legal and political arguments to achieve her overriding goal of defeating the legislation," the National Right to Life Committee wrote in a letter to all Senators encouraging them to oppose Kagan.

4. Gay Rights

One of the sure-to-be-big GOP criticisms will be on Kagan's brief barring of military recruiters from her school's offices when she was dean of Harvard Law School. Trying to adhere to Harvard's policy of not allowing recruiters from companies or organizations that discriminate, Kagan was conflicted about how to approach "Don't ask, don't tell," a law she personally reviled. She briefly restricted recruiters' access to the school's resources office, though helped them find a backdoor through veterans' groups. When the Federal Government threatened to revoke millions of dollars in aid to Harvard, Kagan bowed and allowed the recruiters back in. Republicans have been trying to portray her has antimilitary because of her actions, a characterization Democrats have pushed hard against. "Like me, Kagan has never made it a secret that she opposes 'Don't ask, don't tell' — so, by the way, do [Defense] Secretary [Robert] Gates and [Chairman of the Joint Chiefs of Staff] Admiral [Mike] Mullen," wrote Senator John Kerry in an op-ed defending Kagan. "But Elena Kagan's actions as dean don't speak to her political beliefs, they simply reflect current law."

Conversely, on gay marriage Kagan has been more conservative, a concern for liberal groups. During her Solicitor General confirmation hearing she said, "There is no federal constitutional right to same-sex marriage." And when asked about the Defense of Marriage Act, under which states don't have to recognize same-sex marriages performed in other states, Kagan said she'd defend the act.

5. Executive Power

Gay rights isn't the only thing worrying liberals about Kagan. After leaving the Clinton Administration, Kagan wrote a paper for Harvard Law Review in 2001 entitled "Presidential Administration" in which she argues about the importance of strong executive-branch control over agencies and regulatory bodies in order for a President to achieve his or her platform, in Clinton's case a progressive one. This argument has been extended, though not by Kagan personally, to apply to foreign policy, particularly executive powers in detentions, surveillance and interrogation.

Kagan did, though, in her confirmation hearing to be Solicitor General say that she believes federal spying laws are constitutional, and suggested that only in the rarest of circumstances could a President circumvent Congress to conduct warrantless wiretapping. In that same hearing she also was asked by Senator Lindsey Graham if she agreed with Attorney General Eric Holder that any member of an enemy force could be detained without trial, specifically terrorist detainees being held at Bagram Air Force Base in Afghanistan. "I think that makes sense," Kagan replied, "and I think that you're correct that that is the law."

Of course, there are many other issues that are likely to come up, but, like many of the top five, Kagan's response, whether she was working for Marshall, Clinton or Obama, will likely be that she was not espousing her own views but simply doing the job she was hired to do. In a polarized political climate less than five months before an election, it's a case most Republicans aren't likely to buy. The question is whether she's extreme enough for them to filibuster her. "I'm not talking about a filibuster right now," Senator Jeff Sessions, the Judiciary Committee's top Republican, told reporters last week. Which means Kagan's confirmation is more than likely. On the other hand, debating all these wedge issues in a high-profile forum may invigorate partisan resistance on either side.

(Published by Time Magazine – June 28, 2010)

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