Republicans Wary of Kagan’s Testimony

Posted June 28, 2010 at 6:40pm

Senate Republicans wasted no time Monday launching a broad offensive against Supreme Court nominee Elena Kagan, raising questions about the veracity of her testimony at her confirmation hearings before she even spoke a single word.

For weeks Republicans have made it clear that they intended to use the hearings to attack Kagan on a range of contentious policy issues. But as the Judiciary Committee confirmation hearing began Monday, GOP Senators unveiled a new line of attack, arguing that Justice Sonia Sotomayor’s dissent in a recent gun rights case proves that Kagan’s statements to the committee, no matter how explicit, may not be trustworthy.

During her confirmation hearings last year, Sotomayor repeatedly said she believed that the right to own a gun is a “personal right” that cannot be abrogated. But in her dissent Monday she appeared to back away from that position, arguing the Constitution does not provide a “fundamental right” to own guns.

Before Kagan’s hearing had begun Monday, Minority Leader Mitch McConnell (R-Ky.) pounced on the dissent, arguing in a press release that “Sotomayor testified at her confirmation hearing that she recognized the ‘individual right’ of the Second Amendment, but today she ‘can find nothing’ characterizing it as ‘fundamental.'” The statement derided the “First Obama [Supreme Court] Nominee’s Devolving Gun Views.”

Republicans on the committee said this change of heart raises concerns about Kagan. In his opening remarks, ranking member Jeff Sessions dismissed nominees’ promises to uphold the law as not being predictive of their actions as judges.

“Broad affirmations of ‘fidelity to the law’ during these hearings will not settle the question,” the Alabama Republican said. “One’s record also speaks loudly. Indeed, it is easy to pledge fidelity to a law when you believe you can change its meaning later if you become a judge.”

Sessions’ remarks were part of a harsh opening statement in which he continued his attacks on Kagan’s handling of military recruiters while she was dean of the Harvard Law School. He also accused her of using her college thesis to lament “socialism’s demise” in New York and of supporting “breathtaking” controls on the First Amendment as solicitor general.

Sen. John Cornyn (R-Texas) also took up the pre-emptive attack on Kagan’s credibility, pointing to Sotomayor’s dissent as an example of a “confirmation conversion.”

[IMGCAP(1)]”One challenge of this hearing is that even nominees that have expressly rejected the activist view before this committee — call it a confirmation conversion — have changed their tune after their confirmation,” Cornyn said. “Last year, Justice Sotomayor came before this committee and pledged allegiance to the traditional view.”

“She testified that ‘Judges can’t rely on what’s in their heart. They don’t determine the law. The job of a judge is to apply the law.’ But in her first term on the court, just finished today, Justice Sotomayor, she has voted with the liberal bloc of the court, which unabashedly embraces an activist judicial philosophy, about 90 percent of the time,” he added.

Although Sessions later said, “I think the testimony can make a difference,” a GOP leadership aide acknowledged that Republicans will work to undermine any claims by Kagan that she will not be an activist jurist.

“The question is whether she’ll be candid or adopt the position that Sotomayor did in order to shore up support from Democrats who support the Second Amendment,” the aide said.

Democrats denounced the attacks, calling the challenges to Kagan’s statements inappropriate while arguing Chief Justice John Roberts made statements indicating he would uphold established precedents but then joined a recent ruling undoing several key campaign finance precedents.

Alleging a confirmation conversion “would be an appalling thing to say except for the fact that all of their recent [nominees] did just that,” Sen. Sheldon Whitehouse (D-R.I.) said after the first day of confirmation hearings.

Sen. Amy Klobuchar, who is also a member of the committee, agreed it was an inappropriate line of attack but said she hopes it does not become a central GOP theme.

“I think that that was disappointing. But people say a lot of things during these hearings,” the Minnesota Democrat said.

Klobuchar, applying what she termed her “Minnesota nice” mentality, did point to several positives on the Republican side, particularly Sen. Orrin Hatch’s (Utah) quip that he expects this to be Kagan’s “last confirmation” as well as Sen. Lindsey Graham’s (S.C.) opening remarks.

Graham, considered the only likely GOP supporter of Kagan on the committee, highlighted a number of areas where he has agreed with the nominee.

Klobuchar said, “Certainly Sen. Graham, noting some other things he agreed with her on [is positive]. … I thought that was interesting that he did that.”

On the opening day, Kagan, 50, played the traditional part of a Supreme Court nominee appearing before the Judiciary Committee. Dressed in a bright blue blazer, the solicitor general sat quietly through nearly three and half hours of opening remarks, accepting both attacks and praise without comment or reaction save for the occasional slight smile.

When it came time for her to address the committee, Kagan avoided making any major statements, thanking the committee and saying she would look to follow in the footsteps of the retiring Justice John Paul Stevens.

“If given this honor, I hope I will approach each case with his trademark care and consideration,” Kagan said. “That means listening to each party with a mind as open as his to learning and persuasion and striving as conscientiously as he has to render impartial justice.”