Supreme Court nominee’s Hill debut comes without fight

President Barack Obama’s nomination of Elena Kagan to the Supreme Court has proceeded without a major fight despite early predictions the confirmation process would trigger one.

The selection of Kagan, who spent Wednesday on Capitol Hill making the requisite courtesy calls to senators, has produced fewer fireworks than the first days after Obama picked Sonia Sotomayor for the high court.

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Republican lawmakers dug through Sotomayor’s 380 majority opinions on the appellate court and grilled her over her rulings on gun rights and the Second Amendment and her controversial “wise Latina” statement.

But Kagan, the U.S. solicitor general, has made few notable public speeches and has never served as a judge — leaving the GOP with little ammunition to wage the kind of intense fight that would fire up its base.

In the absence of an extensive record, Republicans have raised concerns about her lack of experience on the bench and her close ties to the Obama administration.

“It’s my hope that the Obama administration doesn’t think the ideal Supreme Court nominee is someone who would rubber-stamp its policies,” said Senate Republican Leader Mitch McConnell (Ky.) on Wednesday. “But this nomination does raise the question, and it’s a question that needs to be answered.”

Kagan spent Wednesday in a series of back-to-back meetings with Democratic and Republican leaders and members of the Judiciary Committee. Accompanied by White House legislative aides, Kagan said almost nothing to the pack of reporters following her, other than to mention briefly that she was enjoying the process.

Republicans emerged with few sharp criticisms of Kagan.

Perhaps the strongest words came from Sen. Jeff Sessions (Ala.), ranking Republican on the Judiciary Committee, who called Kagan’s stance against “Don’t ask, don’t tell” while dean of Harvard Law School “a big mistake.”

While serving as dean, Kagan barred military recruiters from the law school’s campus a year after she wrote a memo that blasted the military’s “Don’t ask, don’t tell” policy as a “moral injustice of the first order.” She also signed an amicus brief supporting a challenge to the Solomon Amendment, a federal law that restricts funding of schools that bar recruiters.

Sessions shared his concerns with Kagan during their meeting Wednesday.

“It seemed to me a little bit out of touch that you think you could disagree with the legal policy of the military and that will allow you in any way to limit their ability to come to your campus,” Sessions later told reporters.

But the dust-up over “Don’t ask, don’t tell” has not yet stirred the same passions as Sotomayor’s “wise Latina” remark or her rulings on gun ownership.

Sessions said he also asked Kagan whether she would be sufficiently independent of the administration but did not belabor the point when he later spoke to reporters.

Sessions admitted that Kagan’s lack of service on the bench does not disqualify her.

“You do not have to be a judge to go on the Supreme Court, I acknowledge that,” Sessions said. “But I think if you’re not a judge, I would have liked to see someone in the harness of the practice of law for a number of years.”

Kagan told Sessions without hesitation that she had the experience to do the job.

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Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) showed little concern over the GOP criticism.

“That’s kind of grasping at straws,” Leahy told reporters Wednesday after meeting with Kagan. “She will either be confirmed or not confirmed based on what we hear in the hearings. I would hope that senators would listen and make up their minds not based on what a single-issue group on the right or left tells them to do.”

Leahy found himself offering a much more spirited defense of Sotomayor last June.

“I think some of the attacks made against her have been among the most vicious I’ve ever seen by anybody, when you have the leaders of the Republican Party — one called her the equivalent of the head of the Ku Klux Klan; another called her a bigot,” Leahy fumed after conservatives criticized Sotomayor’s assertion that her heritage gave her special insight into the law.

One GOP member of the Judiciary panel said the Sotomayor criticism was all but ready-made.

“The Sotomayor speeches were caught on video, which ginned up a lot of attention and interest,” the lawmaker said.

Despite the initial controversy, Sotomayor eventually sailed through the Senate with 68 votes, including the support of nine Republicans.
Political experts and GOP insiders have predicted a much bigger fight over Kagan than Sotomayor.

“I think the Supreme Court pick will be enormously controversial, whomever Obama picks,” Ross K. Baker, a professor of political science at Rutgers University, predicted before Obama unveiled his pick.

A Senate GOP aide said Tuesday that Kagan would spark an intense fight.

“This will be much bigger than Sotomayor,” the aide said.

Republican insiders have predicted that GOP strategists would attempt to rally the conservative base and raise money ahead of Election Day by waging an intense fight.

Kagan’s slim public record, however, has made that more difficult.

The criticism that Kagan lacks sufficient legal experience, a critique that derailed the Supreme Court nomination of Harriet Miers in 2005, has also gained little traction.

Leahy touted her as a top lawyer, the first woman to serve as dean of Harvard Law School and the first to serve as solicitor general.

Sen. Chuck Grassley (Iowa), a senior Republican on the Judiciary Committee, rejected the comparison between Kagan and Miers during a phone call with reporters Wednesday.

“I don’t think that there’s anything that’s going to compare her to Harriet Miers at all, except for the fact that she’s coming from the counsel’s office to here,” Grassley said. “I don’t remember a lot about the academic background on Harriet Miers, but I’m sure that as far as academic writings are concerned, Kagan’s got much more.”

Some Senate Republicans predict the biggest fight may come over access to internal records from Kagan’s time as Obama’s solicitor general and as a domestic policy adviser in the Clinton administration.

Sessions said Obama officials balked at sharing some Clinton-era documents when the Judiciary Committee held hearings last year on Kagan’s nomination to the solicitor general’s post.


Michael O’Brien contributed to this article.