Senate Republicans launched a new line of attack on Supreme Court hopeful Elena Kagan on Sunday, questioning whether she supports banning certain books and pamphlets.
With the Conference still divided on an overall messaging strategy for the confirmation process, Senate Minority Leader Mitch McConnell (R-Ky.) debuted the latest talking point during an appearance on NBC's "Meet the Press," calling the question of whether Kagan, currently solicitor general, would back book-banning "very troubling."
The issue arises from the campaign finance case Citizens United v. Federal Election Commission. During the first round of oral arguments in March 2009, Deputy Solicitor General Malcolm Stewart defended the FEC decision to block release of "Hillary: The Movie" during the 2008 campaign.
Civil liberties advocates attacked the argument as a violation of the First Amendment. Indeed, even Kagan herself sought to distance the Obama administration from Stewart's arguments, saying during the September 2009 round of oral arguments that the government's position "has changed" and that the administration no longer believed the FEC has the authority to ban or restrict the distribution of books. However, Kagan did contend the restriction of some political pamphlets could be allowable.
"Solicitor Kagan's office in the initial hearing argued that it would be okay to ban books. And then when there was a rehearing Solicitor Kagan herself in her first Supreme Court argument suggested that it might be okay to ban pamphlets," McConnell said. "I think that's very troubling, and this whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and by the full Senate."
Republicans said the issue could help demonstrate that Kagan is out of touch with the mainstream.
"It is very hard to identify with the contention that the U.S. government could ban written words because of a disagreement with the author," a GOP aide said. "Rarely do you have a view expressed by a nominee that is a complete departure from a principle that quite literally was instrumental in the very foundation of this country."
Since Kagan's nomination by President Barack Obama on Monday, Republicans have rolled out a series of criticisms largely focused on her lack of courtroom experience and relatively thin paper trail. According to Republicans, none of these attacks are expected to be game-changers, but they are part of a broader effort to raise concerns about her fitness to serve on the high court.
GOP leaders have not sought to enforce a specific party messaging strategy — the hallmark of their fights with the Obama administration — resulting in mixed signals from the conference on Kagan's nomination. Instead, Republican leaders have asked Members not to make statements prejudging Kagan as part of an effort to portray her as a dangerous unknown quantity.
"The fact that Ms. Kagan does not have judicial experience makes it even more important that Senators allow the Judiciary Committee to do its work," a senior GOP leadership aide said. "Republicans will raise questions based on what we learn about the nominee but there will not be a conference-wide effort to focus on any one aspect of her record until we have a more fulsome understanding of the nominee's qualifications."
Meanwhile, several Republicans have made positive comments about Kagan. Senate Minority Whip Jon Kyl (R-Ariz), a member of the Judiciary Committee, all but ruled out a filibuster Sunday, even though he expressed concerns about some of her views on anti-terrorism efforts.
"The filibuster should be relegated to the extreme circumstances, and I don't think Elena Kagan represents that," Kyl said on CBS's "Face the Nation."
Sen. Susan Collins (R-Maine) said much the same thing on Thursday after meeting with Kagan: "At this point I do not see the extraordinary circumstances that I use to determine whether to filibuster a nominee."
But Sen. James Inhofe (R-Okla.) — one of the Conference's staunchest social conservatives — said within hours of the announcement that he would vote against Kagan's nomination.
One of the first lines of attack on Kagan was that she lacks judicial experience, with McConnell, Judiciary ranking member Jeff Sessions (R-Ala.) and National Republican Senatorial Committee Chairman John Cornyn (Texas) saying it could mean she is not qualified to serve.
Rank-and-file Republicans, however, were not so sure. Sen. Orrin Hatch (R-Utah), a Judiciary member, dismissed concerns about her judicial experience. "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," he said.
Republicans then shifted their attacks, raising concerns that Kagan would not be able to drop her loyalty to the Obama administration — her current employer — and become an impartial judge.
"It's my hope that the Obama administration doesn't think the ideal Supreme Court nominee is someone who would rubber stamp its policies. ... But this nomination does raise the question. And it's a question that needs to be answered," McConnell said in a floor statement last week.
But a number of lawmakers — including Collins and Senate Judiciary Committee members Tom Coburn (R-Okla.) and Lindsey Graham (R-S.C.) — dismissed that argument as well.
"Oh come on. Listen, who do you expect a Democratic president to nominate?" Graham said.