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GOP Muddles Its Kagan Critique

Republicans Send Mixed Messages Over Nominee’s Qualifications for Court

Bill Clark/Roll Call
Sen. Orrin Hatch said he’s not concerned about Supreme Court nominee Elena Kagan’s lack of experience as a judge. He said it’s not a “disqualifier.”

Senate Republican leaders are launching a full-on assault against President Barack Obama’s Supreme Court nominee, Elena Kagan, over her lack of judicial experience, but they already appear to have a major problem: Their rank-and-file Members aren’t buying into it.

Soon after Obama announced Monday the solicitor general as his nominee to replace retiring Justice John Paul Stevens, GOP leaders took to the Senate floor to raise doubts about her ability to serve, arguing that she has never been a judge and had little courtroom experience.

National Republican Senatorial Committee Chairman John Cornyn (Texas) called Kagan “a surprising choice” and said: “Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court justice.”

Senate Minority Leader Mitch McConnell further highlighted how Kagan, a former professor and dean of the Harvard Law School, not only lacks judicial experience, but substantial litigation experience as well.

“Ms. Kagan has neither” of these qualifications, the Kentucky Republican said, which sets her apart from former Chief Justice William Rehnquist, who also lacked judicial experience but was in private practice for 16 years prior to his appointment to the court.

“We will diligently review Ms. Kagan’s record to ensure ... that she possesses the requisite experience to serve on the Supreme Court,” McConnell vowed.

But the aggressive posture doesn’t appear to be resonating with many of the rank and file, who say that her lack of judicial experience should not be used against her.

Judiciary Committee member Sen. Orrin Hatch, who said he knows Kagan personally, said she is “fair” and has “a good résumé.” He dismissed concerns about her time in the courtroom.

“I do not think it’s a disqualifier not to be a sitting judge. Some of the greatest judges on the court were not sitting judges,” the Utah Republican said. “I suspect she’ll do fine” in the confirmation hearings.

Similarly, Sen. John McCain said he doesn’t have a problem with the amount of time Kagan has spent on the bench. “That wouldn’t be my concern,” the Arizona Republican said.

Moderate GOP Sen. Olympia Snowe (Maine), who was one of seven Republicans who voted last year to confirm Kagan as solicitor general, said she didn’t think it was necessary that all Supreme Court justices have a judicial background.

“I think you have to look at the totality of one’s experiences,” Snowe said. “We have to make sure that there is a broad perspective.”

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