Solicitor General Elena Kagan this afternoon will sit down before nineteen senators, dozens of snapping cameras and the entire political world, prepared to dodge questions rather than reveal any personal leanings and charm the Senate Judiciary Committee with her knowledge of Supreme Court precedent. Senators will talk (and talk), make political points about their own pet issues and milk their moments on a national stage.
There will be plenty of discussion of precedents, but if precedent is any indicator, Kagan’s confirmation hearings will either be supremely boring or extremely interesting. We handicap the possibility of either, after the jump.Kagan herself once remarked that the hearings are a “vapid and hollow charade,” a sentiment with which bipartisan Supreme Court experts agree.
Should the hearings — which begin at 12:30 today and will continue at least through Thursday — lack any spark or sizzle, the Obama White House will breathe a sigh of relief. Officials there who have prepped Kagan like they are studying for a college entrance exam say she’s ready for anything.
“Like any good lawyer, she’s preparing,” Bob Bauer, White House general counsel, told reporters on a conference call Friday. Bauer said he’s helped her in cram sessions but said in a meeting Thursday he was compelled to “marvel” at her plans for the hearing. “She’s had a running start from day one,” he said.
Of course, hearings can offer surprises (see Petraeus’ dehydration and Martha Alito’s tears) but, since Clarence Thomas was confirmed in October 1991, there’s been a certain predictability to them, regardless of which party rules the roost.
What we do know is that this week Democrats will use the time to spotlight rulings from the Roberts court that they’ve abhorred — including the Citizens United decision allowing corporations to get directly involved in politics. Kagan represented the United States’ losing side last fall during the Citizens United case.
We also already know the line of questioning that’s likely to be expected from Republican critics: her record on military issues. Kagan is known for having banned banning military recruiters from campus as dean of Harvard Law School, but Pentagon records released this month show that then-Harvard President Larry Summers played a larger role than Kagan. Republicans intend to call military witnesses during the hearings to challenge Kagan on the issue.
The GOP also will say she does not have enough of a record. Since Kagan has never served as a judge, the Republicans complain it’s not easy to evaluate her service. They also complain about the volume of documents that were released from Kagan’s career, even though, as we reported, that volume is greater than they saw from John Roberts.
Republicans will attempt to pin Kagan down on same-sex marriage, abortion, advice she may have given to Bill Clinton on scandals during his presidency and gun rights, especially related to DC’s handgun ban. (In an interesting development, the NRA apparently telegraphed to members that they won’t challenge Kagan’s record on the Second Amendment.)
The hearings will give everyone the chance to talk about major developments since the Obama administration came to power. Ranking member Jeff Sessions made it clear early on that the multiple state lawsuits challenging the new health care reform law could be on the table. Then there’s the administration’s plans to sue Arizona over its new immigration law. Conservatives are already teeing up a line of questioning about immigration and the responsibility of the federal government.
Republican Sens. Chuck Grassley (IA) and John Cornyn (TX) are likely to be the most interesting GOPers to watch this week. Grassley has a tendency to ask sharp questions and to use his Twitter feed to criticize the president. Cornyn’s line of questioning could affect his Senate candidates across the country.
But it’s possible the Republican questioning will be mostly tame. Sens. Tom Coburn (R-OK), Orrin Hatch (R-UT) and Jon Kyl (R-AZ) voted for her 2009 confirmation to be solicitor general. She was approved then on a 61-31 vote, and Obama political adviser David Axelrod told reporters Friday he predicts she’ll earn “many” Republican votes this time around. Sen. Lindsey Graham already has said some favorable things about Kagan.
Sen. Arlen Specter will be among the most interesting to watch — he voted against Kagan in 2009, just before he switched parties. He’s issued several statements suggesting he’s not convinced. Could he vote against her this time around? He already lost his seat in the May Democratic primary, so anything is possible.
Progressives say they don’t expect Republicans to put up more than a token fight against Kagan, thanks in part to an aggressive defensive stance adopted by the White House early on.
“It feels to me that Republicans, pushed by their right-wing base, are sort of going through the motions but this is an eminently qualified nominee and nothing is sticking,” Marge Baker, executive director of People For The American Way told reporters Friday. “In the end I don’t think anyone believes this is going to be a particularly difficult process.”
But that doesn’t mean it won’t be a long process. Republicans have allowed the filibuster threat to dangle, and the GOP’s strategy has been no secret — delay the nomination as long as possible to keep Democrats from passing any more significant legislation before the fall midterms.
One mystery remains before Chairman Pat Leahy brings down the gavel. Will the hearings go there — i.e., will senators question Kagan’s sexual preference? When Kagan was on the shortlist, there were rumors and innuendo all over the place, forcing the White House to do rare pre-decision pushback telling reporters that Kagan is not gay. But once she was nominated, her enjoyment of softball made the cable circuit speculate anew.
And since Kagan is female, expect a round of fashion coverage examining every shoe, blazer and jewelry choice.
Additional reporting by Evan McMorris-Santoro