Supreme Court Nominee Elena Kagan: What Questions Can She Expect?

The Senate hearings for Supreme Court nominee Elena Kagan begin Monday. Here is a primer on how a deeply partisan Senate might challenge her.

Washington – For gravitas and spectacle, few set pieces on Capitol Hill match a Senate confirmation hearing for a lifetime appointment to the US Supreme Court. But for Solicitor General Elena Kagan, who faces 19 senators and a wall of cameras on Monday, there’s an even more dramatic element: timing.

Her hearing opens as the Senate is virtually locked down in partisan gridlock. Members of Congress are fixed on midterm elections that could flip control in both the House and Senate. And the current high court, which has outraged the Democratic majority with several recent rulings, is set to release its final rulings for the year, also on Monday.

Watch live coverage of Elena Kagan’s Senate confirmation hearing, here.

Even before Monday’s opening statements or the questioning – expected to run through Thursday – the political narrative around the Kagan confirmation is set. For Republicans, it’s the threat of “activist judges” that promote the Obama administration’s push toward big government. Democrats are turning the activist judge argument on its head, claiming that the current high court is weighted in favor of conservative activists and corporate power.

A Counterweight to Conservatives?

“We saw another troubling example in the narrow 5-to-4 decision handed down earlier this week in a case called Rent-a-Center v. Jackson, in which the conservative activists in the majority once again ruled in favor of big business at the expense of hard-working Americans,” said Sen. Patrick Leahy (D) of Vermont, who chairs the Senate Judiciary Committee, in a press briefing on June 23.

Just last week, the Democrat-controlled House passed a “fix” to the Supreme Court’s January ruling in Citizens United v. Federal Election Commission, which struck down limits to corporate campaign spending. “The decision undermines democracy and empowers the powerful,” said House Speaker Nancy Pelosi in a floor speech before the vote. Senate majority leader Harry Reid says the Senate will also take up the issue as a priority.

Political Roles for Obama and Clinton

Meanwhile, Republicans are critical of Ms. Kagan’s role as solicitor general. In the Citizen’s United case, she argued that a movie critical of former Sen. Hillary Rodham Clinton (D) of New York to be broadcast just before the 2008 Democratic presidential primary should be banned.

In meetings with Republican senators, Kagan reportedly said that her role as solicitor general was to defend the federal statute. In response, Republican leader Mitch McConnell said he was less troubled by Kagan’s defense of federal law than the argument she employed to do it.

“I understand that her office has to defend federal law. But the client doesn’t choose the argument, the lawyer does. And the argument Ms. Kagan and her office chose was that the federal government has the power to ban books and pamphlets,” said Senator McConnell in a floor speech on May 17. More recently, the Senate minority leader charged that Kagan’s work in the Clinton White House reveals a woman who was “committed to advancing a political agenda.”

Meanwhile, Republicans on the Senate Judiciary panel have pushed for a full disclosure of documents from her years as adviser on domestic policy in the Clinton administration. Because Kagan has no record as a judge, those political documents are crucial to evaluate her fitness to serve, says Sen. Jeff Sessions (R) of Alabama, the top Republican on the panel.

Military Recruitment

In a June 22 statement, Senator Sessions especially targeted her decision as dean of the Harvard Law School to limit access to military recruiters.

“The documents also show that Ms. Kagan continued to fight military recruitment even when her defiance of the law meant that Harvard could lose half a billion dollars – only to be overruled by Harvard’s president,” says Sessions. “Ms. Kagan’s actions and comments, combined with the fact that she had little to say about recruiting policy while working for President Clinton, unavoidably raise questions about possible hostility to the military as an institution.”

Never a Judge

Democrats counter that Kagan is amply qualified to serve on the Supreme Court. “She’s well within the mainstream of American political thought,” says Sen. Dianne Feinstein (D) of California. She has not been a judge, but more than one-third of the others serving on the Supreme Court have not, either. If confirmed, “she becomes one of 38 percent of Supreme Court justices who have not had judicial experience, either,” Senator Feinstein adds.

In terms of education and background, Kagan’s record at the top of the American legal elite is a close fit with other recent nominees, such as Chief Justice Roberts.

“Nominees have been drawn from an extremely narrow stratum: East Coast, Ivy League. There is nobody there who has run a small business, who has been a soldier, who has started a garage rock band,” says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. “They consider diversity only in terms of race and gender. There is so much more to diversity than those two elements.”