Bloomberg - Sen. Hatch Says Kagan Probably Will Be Confirmed
By Laura Litvan, Bloomberg
May 12 (Bloomberg) -- Senator Orrin Hatch, a Utah Republican, said Supreme Court nominee Elena Kagan has a strong likelihood of being confirmed by the U.S. Senate, an expectation shared by some of the conservative advocacy groups considering whether to oppose her.
Hatch said yesterday that barring an unexpected development at Senate Judiciary Committee hearings on her later this year, he anticipates she will be approved by the Democratic-dominated panel and her nomination then will be confirmed by the full Senate. Hatch, who serves on the committee, said he hasnt decided how he will vote.
The assessment by the six-term senator suggests that Kagans nomination will probably unfold like that of President Barack Obamas selection of Sonia Sotomayor, who was confirmed to the court last August on a 68-31 Senate vote. Kagans confirmation would place three women on the court for the first time. While she is unlikely to change the courts ideological makeup, at age 50 she is seen as an Obama nominee who could affect the nations laws for decades.
I assume shell do a good job at committee; shes an intelligent woman, Hatch said in an interview. If she makes it through the committee process, shell probably get through on the floor.
Some of the conservative groups that are weighing Kagans background and qualifications, with an eye toward opposing her, say they also think she will probably be approved.
Paper Trail
Curt Levey, executive director of the Washington-based Committee for Justice, said it will be hard for opponents to combat Kagan, in part because Democrats control the Senate, 59- 41, and because the nominee doesnt have an extensive paper trail.
Given the Democratic Senate majority, you would have to have something close to Karl Marx for them not be get confirmed, said Levey.
Obama on May 10 announced Kagan as his choice to replace Justice John Paul Stevens, who is retiring after 34 years on the court. Kagan, the first woman to serve as dean of Harvard Law School, is U.S. solicitor general. She also is the first woman to hold that post, which represents the U.S. government in cases before the Supreme Court.
Meetings Tomorrow
Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, and other Senate leaders of both parties plan to meet with Kagan today. Leahy said he will move after that to set a date for her confirmation hearings.
The top Republican on the panel, Senator Jeff Sessions of Alabama, said he agrees with Leahy that a full Senate vote before August should be the goal, although that would change if there are any surprises at her hearings.
Republicans are raising concerns about Kagans lack of experience as a courtroom lawyer or a judge. Some Republicans also question her opposition to military recruitment at Harvard to protest the Defense Department ban on acknowledged gays and lesbians, or point to her work with judges -- including the late Supreme Court Justice Thurgood Marshall -- whom they consider too liberal.
Kagan underwent judiciary panel scrutiny when nominated for the solicitor general post by Obama, and was confirmed last year 61-31. Seven Republicans -- including the No. 2 Senate Republican leader, Jon Kyl of Arizona -- supported her then.
Thin Record
The challenge for outside groups is Kagans unusually thin public record, said Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, another conservative group. Most other high court nominees in recent decades have served on the lower courts and their work provided an opportunity to reflect on how they might lean in future cases, she said.
Severino said her group will demand broad disclosure of records from when Kagan served in the mid-1990s as an associate White House counsel under President Bill Clinton. Severino said she also will ask Republicans on the Judiciary Committee to push Kagan harder than usual on her positions on issues.
This is an occasion for the senators to reconsider what has become an anemic confirmation process in the last decade, Severino said.
She said her group isnt taking any position yet on the nomination. At this point, were just troubled, she said. Theres not a lot to go on.
Not Find Much
Senator Dianne Feinstein, a California Democrat, said she expects that potential opponents of Kagans nomination are going to drag through her past. But I dont think theyre going to find much.
After a weekly meeting yesterday of Senate Republicans, Sessions said Kagans lack of a courtroom track record will make it harder for her to show that she will faithfully apply legal precedents in cases and act independently from her own views.
I think that she has a good bit of record, its not the kind of record that allows her to establish the kind of disciplined mental clarity that a great justice on the Supreme Court should have, Sessions said.
Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, said the toughest questions for Kagan will revolve around her views about executive power and national security needs, her support for a ban on military recruiters on Harvards campus, and her position on how judges should interpret the Constitution.
He also said he sees her as likely to win Senate approval. I would be very surprised if shes not confirmed, he said.