Kagan’s Thin Record Merits Deep Probing, Sessions Says

Posted May 16, 2010 at 10:19am

The top Republican on the Senate Judiciary Committee said Sunday that he was eager to thoroughly probe Supreme Court nominee Elena Kagan’s background but that he thought questions about her sexuality should be outside the scope of that inquiry.

“You’ve got to be careful about that,” said Sen. Jeff Sessions (Ala.). “I don’t believe that that is a fundamental judgment call of whether that person can be a good judge or not. We need to know how able they are at ascertaining the real legal issues in a case and deciding it fairly and justly.”

Sessions’ comments on ABC’s “This Week” came after the White House and Kagan’s friends tried to squelch rumors this week that Kagan was a lesbian.

Sessions said he wanted to probe the nominee’s record to determine what kind of jurist she would be, particularly because she does not come from within the federal judicial system.

“Because she has so little other record, it’s going to be a big deal,” Sessions said.

Judiciary Chairman Patrick Leahy said he planned to sit down this week with Sessions and work out a schedule for Kagan’s confirmation, which the Vermont Democrat said he still hoped to complete this summer. Leahy said he expected Kagan’s questionnaire, which the Judiciary Committee sent her last week, would be returned this week.

Senate Minority Whip Jon Kyl (R-Ariz.), a member of the Judiciary Committee, said on CBS’s “Face the Nation” that Kagan’s views on the military will come up in her hearings. When asked whether he believed Kagan was anti-military, Kyl replied, “I don’t know.”

Conservatives have taken aim at Kagan over her efforts to block military recruiters from Harvard’s campus to protest the “don’t ask, don’t tell” policy toward gay soldiers. Kyl said that stance, along with some of her writings about the war on terror, “caused me some concern.”

But Judiciary member Sen. Dianne Feinstein (D-Calif.) responded that any suggestion that Kagan might be anti-military was “nonsense.”

Former Speaker Newt Gingrich (R-Ga.), speaking on “Fox News Sunday,” called on Obama to withdraw Kagan’s nomination because of her effort to block military recruiters from Harvard.

“We’re in two wars, and I see no reason why you’d appoint an anti-military Supreme Court justice,” Gingrich said.

But later on the same program, former first lady Laura Bush had a decidedly different take. When asked what she thought about the prospect of Kagan becoming the third woman on the high court, she replied, “I think it’s great. I’m really glad that there will be three if she’s confirmed. I like to have women on the Supreme Court. I think it does make a difference. I just like women to be represented in all parts of American political and civic life.”

Sen. Charles Schumer (D-N.Y.), the chamber’s No. 3 Democrat and a member of the Judiciary panel, touted Kagan’s experience as dean of Harvard Law School, saying she “will help bring the court down to earth a little bit.”

“She doesn’t have judicial experience but she has a lot of practical experience,” Schumer said on NBC’s “Meet the Press.”

Schumer and Leahy both said they would support subjecting Kagan — who has criticized the confirmation process as an ineffective way to suss out a nominee’s judicial and legal views — to tough questions during the upcoming hearings.

“These hearings should not be a farce and should not be, ‘What’s your favorite movie or restaurant?'” Schumer said. “They should talk about judicial ideology and philosophy. Obviously you can’t try to pin someone down on what might be in an upcoming case. But knowing how they think, how they reason, what’s their view of settled law — these are all very legitimate questions, and the hearings would be much less if they weren’t asked.”

Minority Leader Mitch McConnell (R-Ky.) said he was concerned about Kagan’s posture toward military recruiters on campus when she was at Harvard and that he wanted to hear more about that during the hearings.

“A more appropriate response might have been to follow the law,” McConnell said.

McConnell pledged that Republicans would comprehensively review Kagan before determining whether to support her nomination.

“The hearings are not a sham,” he said. “They’re serious hearings.”