Remember that Supreme Court nomination?
Before General McChrystal became as closely linked with Rolling Stone as Mick Jagger? Before the Dodd-Frank Wall Street Reform show dominated C-SPAN 3? And even before oil flooded the Gulf?
Well, Elena Kagan is back.
At 12:30 today, Senate Judiciary Committee Chairman Patrick Leahy will gavel the confirmation hearings to order, starting a week that as of now looks to be as uneventful as last year’s Sotomayor hearings.
But there is one key difference. The American people connected with Sonia Sotomayor through her compelling life story. When her hearings began, the public knew about her and their impression was favorable. Partially because she lacks a similarly dramatic personal narrative and partially because other events have pushed her nomination out of the news, Americans just don’t know much about Elena Kagan. That gives Republicans an opportunity–the hearings will catapult Kagan back into the spotlight and give many Americans their first impression of her. But it is not clear how Republicans will capitalize on that fact.
The last two months have seen the testing of a flurry of lines of attack. Kagan is too inexperienced because she is neither a judge nor a long-time courtroom advocate. Kagan is too political because the memos from her stint in the Clinton White House show that she took political concerns into account when making recommendations to her superiors. Kagan is anti-military because she participated in a constitutional challenge to a statute requiring law schools that prohibited recruiting by employers that refused to sign a nondiscrimination pledge nonetheless to allow military recruiters on campus (the military could not sign the pledge because of its don’t ask/don’t tell policy).
Thus far, nothing has “stuck.” But the ghost of Robert Bork always hovers over Supreme Court confirmation hearings. Democrats successfully used Bork’s hearings to drive home themes that eventually led to his nomination’s defeat. Republicans will try all of these arguments and more in an effort to do the same to Kagan.
Many pine for the old days in which Supreme Court confirmations did not resemble armed combat. But many groups on the left and right focus with laser-like intensity on legal issues, and they demand aggressive tactics from Democrats and Republicans respectively. The old era is over and it isn’t coming back.
Most of today’s session will be taken up by opening statements from the 19 Judiciary Committee members. If she’s lucky, Kagan will be able to deliver her opening statement and then the hearings will recess until tomorrow.
There is an interesting symmetry in the scheduling of the hearings. This is also the last day of the Supreme Court’s Term. When the Court takes the bench at 10 am, it likely will be Justice Stevens’ last public appearance as an active Supreme Court Justice (he will continue to serve until Kagan is confirmed). And, true to form, the Court will issue its last opinions–in four blockbuster cases demonstrating the breadth of the issues that come before it. The Court will decide whether the Second Amendment’s newly-revitalized right to bear arms limits the power of the States to enact gun control laws; it will address the constitutionality of the Public Company Accounting Oversight Board, a key element of the Sarbanes-Oxley law passed in 2002 in the wake of the Enron and WorldCom scandals; it will decide a critical question regarding the eligibility of inventions for protection under the patent law; and it will resolve a First Amendment dispute over whether state universities must recognize and fund religious student groups that refuse to abide by nondiscrimination pledges.
These cases — especially the Second Amendment decision — are likely to be featured in this week’s hearings.
Supreme Court watchers will have to rush to digest these rulings and then tune in to the hearings. I’ll be doing just that and will be back live-blogging when the hearing starts.
