Kagan Hearings Set
Confirmation hearings before the Senate Judiciary Committee will begin June 28th for President Obama's nominee to the Supreme Court, Solicitor General Elena Kagan. Senate Democrats are planning to move forward with the hearings in time for a confirmation vote to occur before the August recess.
These hearings are critical. The nominee must address specific questions about her judicial philosophy and how she views the role of judges, the U.S. Constitution and the rule of law. The fact that Kagan has no prior judicial experience will certainly result in scrutiny of her past writings and record - including the work she did in the Clinton White House.
There's not much of a paper trail to examine, so it is incumbent upon the Senate Judiciary Committee to ask Kagan the kinds of questions that will help Americans understand how she views the role of the judiciary. What does she believe? Will she abide by the U.S. Constituton or embrace an activist view on the bench?
As this confirmation process moves forward, here are three items to watch for:
1) Probing Questions - Given the absence of a judicial record for Kagan, it will be unusually difficult to determine her judicial philosophy. This being the case, Senators on the Judiciary Committee must ask more in-depth policy questions than might normally be the case. Its less about directly questioning Kagans experience, and more about the simple fact that her clear lack of experience necessitates a careful examination of her judicial philosophy. When a nominee has a long history of rulings on a case, Senators can often simply ask for an explanation of an apparent philosophical belief. In Kagans case, there are no court decisions. There is no judicial record. That means Senators must ask her specific questions about judicial philosophy. We don't advocate nominees expressing legal opinions about specific issues, but we do want to know how their judicial philosophy and temperament influences their decision-making process. We are calling on the Senate Judiciary Committee to vigorously engage in this process.
2) U.S. Military The Senate Judiciary Committee is likely to spend a great deal of time examining Kagans record on the military, and specifically her participation in an amicus brief in Rumsfeld v. FAIR. Essentially, in this brief, Kagan advocated for the right of a university to ban military recruiters because of the "Dont Ask, Dont Tell" policy that was put in place by the Clinton Administration. This argument was in direct conflict with the U.S. Congress and undermined the military during a time of war. Notably, the U.S. Supreme Court rejected Kagans argument unanimously. The Senate should carefully and thoroughly examine this issue.
3) Democrat Opposition The selection of Kagan as the nominee really comes as no surprise - she has been at the top of President Obama's 'short list' for weeks. What is somewhat surprising, though, is that President Obama selected a nominee who has no prior judicial experience. This fact may generate some criticism from even the Presidents own party. Specifically, just last year, Senator Arlen Specter of Pennsylvania vehemently opposed Kagans nomination to the post of Solicitor General due to her lack of experience. However, Senator Specter has since become a Democrat. If he wants to remain consistent, he would have to oppose her nomination again. There are indications that he is wavering from that position, but it is certainly possible that he, and possibly other Democrats, will view Kagans lack of experience with some skepticism.
The bottom line is that, if confirmed, Elena Kagans term on the Court will have a significant impact on the direction of our nation. As such, the U.S. Senate must be extremely deliberate in its review leading up to and including the confirmation hearings. This includes a careful examination of her record, as well as an in-depth exploration of her judicial philosophy, where there is no record.
We have produced an initial memo on Elena Kagan. You can read it here. We will provide more in-depth analysis as the process unfolds.