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Kagan hearing isn’t just about nominee

Mon., June 28, 2010

Familiar themes will likely punctuate proceedings

WASHINGTON – The questions will come hard and fast for Elena Kagan, President Barack Obama’s Supreme Court nominee, as her confirmation hearing gets under way today. 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 both Democrats and Republicans with a platform to make their respective campaign arguments to the viewing public. That means that, to Kagan’s prospective questioners on the Senate Judiciary Committee, grand themes could be as vital as substantive legal issues, transforming the affair into even more of a piece of political theater than usual.

Kagan, the U.S. solicitor general, is in line to replace the retiring Justice John Paul Stevens, and Republicans have already expressed concern about her lack of judicial experience and her political views. The 50-year-old New York City native has never been a judge.

Even as they are grilling Kagan, Republicans will continue their assault on the Democrat-controlled Congress, sounding the alarm about what they see as the steadily encroaching reach of the federal government. Kagan likely will face questions about the constitutionality of the sweeping health care overhaul and perhaps be asked about the financial regulation bill that could be signed into law in the coming 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.

Sessions said Kagan’s nomination has “real problems” that she will have to address, and that her lack of judicial experience means more focus on her political views.

“She’s been aggressive on issue after issue from the liberal side of the political issues,” he said.

Democrats, alternatively, 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 earlier this year in Citizens United v. 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, on the other hand, largely view campaign-finance regulation as an affront to free speech rights.

Kagan, while an adviser 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. Mitch McConnell of Kentucky, the Senate’s top Republican, has been a fierce critic of Kagan on the issue.

President Bill 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 Second Amendment generally.

Obama aides, however, stress 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 adviser to the president. “That’s a key difference.”

Sessions has vowed to press Kagan on her role in a controversy over military recruitment at Harvard University while Kagan was dean of its law school. Republicans charge 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.

“This policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans,” said Sen. Lindsey Graham, R-S.C.

Kagan’s supporters say she relented once it was clear her position had no legal support.

By and large, Republicans have stayed away from suggesting Kagan’s nomination could be filibustered, although neither Sessions nor McConnell have ruled it out. With Democrats holding 59 Senate seats, and with a number of prominent legal conservatives supporting her, Kagan’s confirmation appears likely.

Conservative interest groups, however, want the GOP to mount a full-out campaign against the nominee. “There’s nothing in the Constitution that requires that senators give deference to presidential appointments to the Supreme Court,” said Phillip Jauregui, president of the Justice Action Group.

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