What To Expect At The Kagan Hearings

The confirmation hearings for Solicitor General Elena Kagan to be the next Supreme Court Justice begin Monday. The hearing could be full of political grandstanding, legal debate, or personal inquiry. I expect all of the above.

Words such as bright, wonderful temperament, great listener, straight shooter are often used to describe Kagan. When he announced her nomination May 10, President Obama said she has the “skill as a consensus-builder.”

President Obama also said she has an “openness to a broad array of viewpoints.” This worries both the left and the right as they are digging deep for any insight into how she might come down on key cases.

Kagan has penned very little that shed any light on her personal beliefs. She has not served as a judge and has floated in and out of government and academia.

Expect some Republicans on the Senate Judiciary Committee to focus on the one thing they do know about her:  her time as Harvard Law School Dean when she kicked military recruiters off the Harvard Law School campus because of the ‘Don’t Ask, Don’t Tell’ policy. Her action came when a lower court ruled the Solomon Amendment, which denies federal fund to universities who don’t allow military recruiters on campus, unconstitutional.  Kagan gave the military full access when the Supreme Court overturned the lower court decision. Republicans might frame her as a radical and anti-military.

Republicans will likely point to memos she wrote as a policy aid to President Bill Clinton and as a clerk to Justice Thurgood Marshall on issues of abortion and guns.

Only support has been vocalized by Senate Democrats. They could use the hearings to criticize the court. They might frame the current Supreme Court as one of the most conservative courts ever under the hand of Chief Justice John Roberts, a George W. Bush nominee, and they will likely categorize the Court as partial to corporations over individuals.

Expect both the Republicans and the Democrats will play to their base. It is an election year.

Meanwhile, some groups on the left are holding out their support for Elena Kagan. Francis Boyle, a Professor of Law at the University of Illinois, said Kagan is too conservative. He points to statements she made during her confirmation hearings to be Solicitor General in 2009 where she said enemy combatants could be detained indefinitely. He notices that Jack Goldsmith, will testify on her behalf this week. Goldsmith was an architect of President Bush’s torture policies. In an email, Boyle said this “proves that the Obama administration… fully endorses the Bush administration’s war against terrorism.”

Meanwhile, The Washington Post reports that civil rights groups are disappointed in President Obama’s choice.

The Washington Post wrote:

“The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group’s president, Mavis T. Thompson, said it “had some qualms” about Kagan’s statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan’s views on affirmative action, racial profiling and immigration.”

The hearing will begin Monday at 12:30 eastern.  Listen live to Pacifica Radio and FSRN’s coverage starting at noon eastern here.

Follow Leigh Ann Caldwell on Twitter.


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