GOP faces Kagan conundrum

President Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court gives Republicans little ammunition in an election year.
 
While providing a tempting opportunity to rally conservative voters and raise money ahead of the midterm elections, seven Republicans, including Senate GOP Whip Jon Kyl (Ariz.), voted to confirm Kagan as solicitor general just last year.

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Many Republicans also are philosophically opposed to filibustering judicial nominees.

Kagan, whose selection had been rumored for days, was seen as a safe choice for Obama because of her reputation as a consensus-builder.

Republicans responded to the news cautiously, pledging to give Kagan a fair hearing and following the script they used a year ago when Obama selected Sonia Sotomayor for the high court.

They raised questions about her spare record and legal views but held back from outright criticism.
 
“It strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience,” said Senate Minority Leader Mitch McConnell (R-Ky.).
 
“Ms. Kagan has neither, unlike [the late] Chief Justice Rehnquist, for instance, who was in private practice for 16 years prior to his appointment to the Supreme Court,” McConnell said.

Republicans familiar with the Senate confirmation process say a GOP filibuster is unlikely.
 
“A filibuster is not on the table; it’s not even close to being on the table,” said Manuel Miranda, who handled judicial nominees as an aide to former Senate Majority Leader Bill Frist (R-Tenn.).
 
“The real issue is, are they going to use this nomination to catalyze a set of issues to the American people?” Miranda said.

Democrats quickly rallied around the nominee.
 
“I believe that through her confirmation process, Elena Kagan will demonstrate that her primary allegiance is to fairness, justice and the rule of law, not ideology,” said Senate Majority Leader Harry Reid (D-Nev.), who was pleased Obama picked a non-jurist for the court.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) confidently predicted that the Senate would confirm Kagan over the summer, although he did not provide a specific timeline. Like Reid, he said he was glad Obama picked “someone from outside the judicial monastery.”
 
Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, said preliminary research has raised concerns.

“We look at her writings and speeches — and some of those have been troubling,” Sessions said during an interview with CNN.
 
He alluded to a tribute Kagan made to former Supreme Court Justice Thurgood Marshall in a 1993 law review article. Republicans say Kagan, who once clerked for Marshall, voiced support for the so-called empathy standard that became an issue during Sotomayor’s confirmation.

Specifically, Kagan lauded Marshall’s view that the court’s role is, as she described, to “protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion.”
 
Republicans have also questioned Kagan’s decision, while dean of Harvard Law School, to bar military recruiters from campus because of her disagreement with the “Don’t ask, don’t tell” policy, which bars gays from serving openly in the armed forces.
 
Republicans have also begun to privately question whether Kagan executed her job as solicitor general to the best of her ability by weakly defending the Defense of Marriage Act.
 
The National Organization for Marriage, a group that opposes same-sex marriage, on Monday declared that a vote to confirm Kagan “will be a vote for imposing gay marriage on all 50 states.”
 
While Kagan defended the law in court, the group charged that she “gratuitously rejected the key legal defense for marriage as the union of husband and wife — that such unions uniquely protect children by encouraging responsible procreation."
 
Curt Levey, executive director for the Committee for Justice, a group that supports strict-constructionist jurists, faulted Kagan for not appealing a 9th Circuit decision weakening the military’s “Don’t ask, don’t tell” policy.
 
“She didn’t live up to the minimum standard a solicitor general should live up to,” he said.
 
A former senior GOP aide said Kagan does not have any obvious flaws that would derail her nomination.
 
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“She hasn’t written that much, and what’s she written is technical,” said the aide, who worked on judicial nominations. “She goes into the confirmation process with 59 votes. Unless she murders someone between now and the vote, she gets through.”
 
The source predicted, however, that Senate Republicans would raise concerns with the nominee to rally the party base and raise money.
 
“That’s what it’s all about,” said the GOP source. “The nomination will be used for two things: raising funds and energizing the base to vote in 2010. It’s all about turnout at this point.”
 
McConnell said during a television interview last month that it would be “highly unlikely” for Republicans to filibuster Obama’s Supreme Court pick.
 
He said he could not envision a filibuster unless the nominee had “really bizarre views,” and noted that he has never tried to block a vote on a Supreme Court nominee.
 
Seven Republicans voted to confirm Kagan as solicitor general last year: Sens. Tom Coburn (Okla.), Susan Collins (Maine), Richard Lugar (Ind.), Judd Gregg (N.H.), Orrin Hatch (Utah), Olympia Snowe (Maine) and Kyl.
 
Several of those lawmakers were among the nine Republicans who voted to confirm Sotomayor: Collins, Snowe, Lugar and Gregg.
 
Hatch may be under increased pressure to vote against Kagan because of the recent ouster of Sen. Bob Bennett in Utah’s Senate Republican primary. Conservative activists who targeted Bennett because they felt he was too liberal say they could target Hatch in 2012.
 
Sen. Lindsey Graham (R-S.C.), an influential member of the Judiciary Committee who supported Sotomayor, has already put out a statement praising Kagan.
 
“Solicitor General Kagan has a strong academic background in the law,” Graham said.
 
“I have been generally pleased with her job performance as solicitor general, particularly regarding legal issues related to the war on terror,” he added. “I look forward to meeting her again, this time to discuss her qualifications to sit on the highest court in the land.”
 
Makan Delrahim, who served as Republican staff director and chief counsel on the Senate Judiciary Committee, said “there isn’t a whole lot of record to ascertain what her judicial philosophy is, based on what’s public now.”
 
He predicted that Republicans will scrutinize her much more closely now that she is up for a lifetime appointment to the nation’s most powerful court.
 
Delrahim said it would be much tougher for Kagan to win seven Republican votes for the high court.
 
“It will require much more vetting than for a four-year term for solicitor general,” he said.
 

Michael O'Brien contributed to this report.

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