THE BATTLE lines were drawn yesterday for Elena Kagan’s confirmation as America’s 112th supreme court justice.
Members of the Senate Judiciary Committee made opening statements in which Democrats heaped praise upon Ms Kagan, while Republicans criticised her lack of judicial experience, questioned her patriotism and alleged extreme positions on such hot-button issues as gun control and abortion.
Ms Kagan beamed when the Democrats spoke, and met Republican rants with a quizzical stare. She will face questions from the senators today and tomorrow. Later in the week, the committee will hear witnesses for and against her nomination.
Ms Kagan must attempt to convince liberal Democrats that she is one of them, all the while persuading Republicans that she falls within the mainstream and is not an activist judge who will seek to legislate from the bench.
“The court must . . . recognise the limits on itself and respect the choices made by the American people,” Ms Kagan said in her opening statement yesterday.
Supreme court nominees usually leave a paper trail of arguments and rulings behind them. But Ms Kagan – as Republican senators repeatedly noted – has never been a judge, and has pleaded cases only for the past year, as President Barack Obama’s solicitor general, the attorney who represents the administration.
A poll released last week showed that 57 per cent of Americans didn’t know enough about Ms Kagan to offer an opinion. But 58 per cent of those surveyed in another poll nonetheless said she should be confirmed.
For clues to her thinking, the judiciary committee has delved into Ms Kagan’s academic writings, and her e-mails during her four years as an adviser in the Clinton White House. Senator Jeff Sessions from Alabama, the ranking Republican on the committee, yesterday accused her of “bemoaning the demise of socialism in New York” in a college thesis.
President Barack Obama set the tone for Democrats on Sunday, when he praised Ms Kagan’s “extraordinarily powerful intellect”, judgment, ability to build consensus, and capacity for hard work. “As I examine some of the arguments that have been floated against her nomination . . . it’s pretty thin gruel,” Mr Obama said.
Senator Patrick Leahy, the chairman of the judiciary committee, noted that Ms Kagan (50) was the first woman solicitor general and the first woman dean of Harvard Law School. “Her legal qualifications are unassailable,” Mr Leahy said. “She excelled at Princeton, Oxford and Harvard Law School.”
Ms Kagan must now regret writing in 1995 that confirmation hearings “have presented to the public a vapid and hollow charade”. Democratic and Republican senators called on her to explain her judicial philosophy.
Just before the hearing began, the supreme court reversed a ban on handguns in Chicago by a 5-4 decision, on the grounds it violated the 2nd amendment right to bear arms. Mr Sessions said Ms Kagan was “a central figure in the Clinton-Gore effort to restrict gun rights”, adding that the Chicago case showed “the personal right of every American to own a gun hangs by a single vote on the supreme court”.
Republican criticism has focused on Ms Kagan’s brief interruption of military recruitment on Harvard campus, in protest at the military’s anti-gay “don’t ask, don’t tell” policy. Mr Sessions yesterday said: “Her actions punished the military and demeaned our soldiers as they were courageously fighting for our country in two wars overseas.”
Mr Leahy said he wants this week’s hearings to be “a constitutional conversation about the role of courts and the meaning of our constitution”. Republicans argue that the court should adhere strictly to the wishes of the country’s founding fathers.
Democrats fault the current supreme court, led by the conservative Justice John Roberts, for favouring the interests of corporations. This year, the court’s 5-4 ruling in Citizens United v Federal Election Commission allowed corporations to spend unlimited amounts of money in election campaigns. In 2008, the Roberts court cut damages against Exxon Mobil for the 1989 Exxon Valdez oil spill from $2.5 billion to $507.5 million.
Barring a major gaffe, Ms Kagan is likely to be approved by the committee during the week of July 12th, with a full Senate vote expected in late July. Only last year, the Senate (where Democrats hold 59 seats) voted 61-31 to confirm her as solicitor general.