GOP Vows Rough Road for Kagan

Posted May 10, 2010 at 6:16pm

Senate Republicans signaled Monday that Solicitor General Elena Kagan is in for a bumpier ride to the Supreme Court than President Barack Obama’s first nominee, Justice Sonia Sotomayor.

Obama officially nominated Kagan, 50, to replace retiring Justice John Paul Stevens on Monday morning. The announcement, widely rumored for days, unleashed talking points on both sides of the aisle, but Republicans were pointed, accusing the former professor and Harvard Law School dean of being an “East Coast elitist” who lacks critical judicial and real world experience.

A senior GOP leadership aide said bluntly that Republicans aren’t planning a repeat performance of what many viewed as a smooth process for Sotomayor, whom the Senate confirmed to the high court in August on a bipartisan, 68-31 vote. “She’s going to have a much more difficult experience than Sotomayor,” the aide vowed.

“She is a surprising choice from a president who has emphasized the importance of understanding ‘how the world works and how ordinary people live.’ Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park and the D.C. Beltway,” poked National Republican Senatorial Committee Chairman John Cornyn (Texas).

“These are not places where one learns ‘how ordinary people live.’ Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court justice,” added Cornyn, who sits on the Judiciary Committee, which will vet her nomination.

Likewise, Judiciary ranking member Jeff Sessions (R-Ala.) accused Kagan of “lack[ing] the depth of experience and practical dealings with issues you’d expect to see in a high office.” He went on to say that “objectively speaking her background is thin.”

“I don’t know how to classify this nominee. I don’t know what her philosophy is. … I just believe that if you put someone on the Supreme Court they ought to be deeply steeped” in the law, Sessions said.

[IMGCAP(1)]Senate Minority Leader Mitch McConnell (R-Ky.) also took issue with Kagan’s résumé. “The American people also want a nominee with the requisite legal experience. They instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training. Of course, one does not need to have prior experience as a judge before being appointed to the country’s highest court. But it strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience,” McConnell said.

“Ms. Kagan has neither, unlike Chief Justice [William] Rehnquist, for instance, who was in private practice for 16 years prior to his appointment to the Supreme Court,” McConnell added.

Kagan, former associate White House counsel under President Bill Clinton, would be the first justice since Rehnquist without judicial experience. She would be the third female on the current bench and the fourth female justice in history.

Senate Democrats were quick to defend Obama’s selection, calling her eminently qualified for the lifetime appointment. At least one Member — Majority Whip Dick Durbin (D-Ill.) — told MSNBC that it is “entirely possible” that Republicans will try to delay Kagan’s confirmation hearings into August.

But Senate Republicans showed little interest in echoing those accolades. Over the next few days, sources say, Republican staff will comb through Kagan’s record for ammunition they can use to build a case against her nomination. Part of the GOP strategy involves highlighting key aspects of Kagan’s background to show that she is out of touch. Republicans plan to make a point to criticize her decision to ban military recruiters from the campus of the Harvard Law School because of the government’s “don’t ask, don’t tell” policy banning openly gay soldiers from serving.

“I don’t think there is any question that in this country there is animosity towards the ruling elite in Washington that dictates the feelings and aspirations and concerns of the American people,” the Republican Senate aide said, charging that Kagan is a “perfect example of someone who has spent their entire life in this East Coast Ivy League bubble … that obviously can’t relate to the average American.”

“Put that into a lens of a person you can’t relate to and you really start to paint a picture of an aristocratic person who thinks Washington knows best,” the aide added.

Meanwhile, Republicans dismissed the suggestion that the six GOP Senators who supported her confirmation for solicitor general would automatically vote in favor of her nomination to the Supreme Court. At least two Republicans who voted for Kagan’s confirmation last year — Senate Minority Whip Jon Kyl (Ariz.) and Sen. Orrin Hatch (Utah) — said Monday that they will not be bound by their previous support for her and called for a lengthy, deliberate confirmation process. Kyl and Hatch serve on the Judiciary Committee. The Senate voted 61-31 to confirm Kagan as solicitor general.

“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl said. “Every Senator has a constitutional duty to scrutinize judicial nominees, and I will take great care in examining her record to ensure that she possess the qualities the American people expect in our Supreme Court justices.”

Added Hatch: “Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her.”

Sen. Susan Collins (R-Maine), one of the six who voted to install Kagan in her current job, did not indicate which way she was leaning, but she gave her high marks.

“Ms. Kagan has an impressive résumé of dedicated public service and strong legal credentials, but she does not have extensive writings by which one can assess her judicial philosophy. In the coming weeks, I will closely examine her record as U.S. solicitor general. I will also follow the Judiciary Committee hearings so that I can better assess how she might approach issues as a judge,” Collins said.