The lines of attack and defense were set out pretty clearly yesterday. Here is a guide to what to expect today, and some reasons why Elena Kagan may have a bit of a tougher time than other recent nominees.
Republicans will argue that Elena Kagan lacks the qualifications of previous nominees: as neither a judge nor an experienced in-court litigator she simply doesn’t have the necessary familiarity with how courts really work. The Democratic response–Kagan was dean of the Harvard Law School, one of the most prestigious legal posts in the country; she has a long career of public service; and she’s been handling the government’s litigation in the Supreme Court for more than a year.
Next, Kagan’s experience is in the “political” world of Washington–her memos and emails are replete with references to political considerations–and she will bring that political orientation to the Court. Democrats will say that any White House job requires consideration of the political implications of policy position, but that Kagan knows the difference between the Court and the White House.
Substantial time will be devoted to Kagan’s alleged hostility to the military, as exhibited by Harvard’s (and her) position in the military recruiting on campus case. Look for lots of discussion by Democrats about Kagan’s outreach to members of the military who attended Harvard while she was Dean (a number of the Democrats’ witnesses fall into this category).
Then there will be a litany of other issues: guns, immigration, abortion, religion, the authority of the Executive Branch with respect to persons detained because of terrorism activities, the reach of federal power on issues as diverse as the TARP program and the health care legislation. In each case, Republicans will try to put Kagan on the politically unpopular side of the issue. And Democrats will argue that her views were tied to her job at the time–working for Bill Clinton, representing the position of the United States, etc.–and do not necessarily indicate how she would decide a case as a judge. And there will be a lot of discussion of Kagan’s friendly relationship with conservatives at Harvard during her deanship, as well as the prominent legal conservatives who have expressed support for her nomination.
Finally, Kagan’s view of judging will be front and center. Does she agree with her mentor, Justice Marshall, that the role of a judge is to reach the right result? Does she believe that constitutional interpretation is controlled by what “unreasonable search and seizure” in 1791. Or what “equal protection” meant in the 1860s? Here, Republicans and Democrats will push in different directions, with Republicans arguing that judges can’t “make the law” and Democrats arguing that the Constitution obliges judges to apply the concepts embodied in the Constitution in light of today’s realities. Also expect Democrats to push Kagan to agree that the Court should defer more to Congress with respect to the legitimacy of the determinations underlying legislation. The Court’s willingness in the Citizens United case to substitute its judgment for Congress’s regarding the risk of corruption from political expenditures infuriates Democrates
This back-and-forth is complicated somewhat by the multiple audiences each side is trying to reach.
Both Republicans and Democrats are to some extent playing to their political bases, each of which expect vigorous arguments in favor of their (very different approaches) to constitutional interpretation. At the same time, they each are trying to convince moderates that Kagan is either “out of the mainstream” or “well within the mainstream” of legal thinking. The more each side pushes a “pure” version of its own approach, the harder it will be for them to make that argument.
And Kagan? Her goal is to get confirmed. That means saying as little of substance as possible and saying nothing controversial–the approach that worked so well for Chief Justice Roberts, and Justices Alito and Sotomayor in their confirmation hearings.
But there are two reasons this may be a bit harder for Kagan than it was for these earlier nominees. The first is an article, written after time as a Senate Judiciary Committee staffer during Justice Ginsburg’s confirmation, in which she criticized the substance-free nature of hearings and argued that nominees should answer questions about their views of constitutional interpretation and particular areas of the law. How will she reconcile those views with her (undoubted) desire to follow in the footsteps of prior nominees and refuse to answer those questions now?
And there were more than a few references by Republicans yesterday to the fact that Justice Sotomayor answered questions generally and promised to keep an open mind on legal issues, but in her first Term on the Court has voted for the most part with Justices Stevens, Ginsburg, and Breyer. Republicans will press Kagan on why they be willing to rely on her similar representations.
One personal note: one of yesterday’s opening statements included a reference to the fact that Kagan grew up on the West Side of Manhattan, then went to Princeton and Harvard, and taught at the University of Chicago and Harvard–all designed to paint Kagan as someone out of touch with ordinary Americans. As someone who also grew up on the West Side (and, like Kagan, is a Mets fan), I have to leap to Kagan’s defense. At that time, this area of Manhattan was clearly a liberal bastion, but it was diverse in every other way–economically, racially, religiously, etc. Anything is fair game in a congressional hearing, but please, don’t attack the old neighborhood.
