David Shepherd: News Blog

Journalist's Notebook

Kagan’s Confirmation Hearings Begin Today; Expect It To Get Ugly

By: David Shepherd [dshepherd@wtwo.com] – Monday, June 28, 2010

When President Obama’s nominee for the United States Supreme Court, Elena Kagan, begins her confirmation hearings on Capitol Hill around noon Monday, she will be thrust into the middle of a battle; as she defends her ability to sit on the high court against a long list of republicans who say she’s not up for the job.

If she makes it through the processes, she will become the nation’s 112th Supreme Court Justice.

Many democrats are calling her a liberal lion; ready to take on opponents to her confirmation and be a key liberal voice on the court.

But for those of us who frequently watch Capitol Hill, we know these hearings can turn very ugly, very fast.

Republicans are ramping up their anti-Kagan rhetoric.  Senate minority leader Mitch McConnell told the media two weeks ago that he would not rule out a filibuster.

Ready More About Filibusters

If Kagan is confirmed, she would be the first Supreme Court Justice with no experience on the bench.  She has an impressive resume from dean of the Harvard Law School to United States Solicitor General.  But will that be enough to get her past the blockade conservatives hope to put up during her confirmation hearings.

Because Kagan hasn’t had a very public profile before her nomination, many lawmakers in Washington are expected to ask a lot of questions in the hopes of getting to know her better.

Kagan on Gun Rights

Members of the National Rifle Association (NRA) are nervous about Kagan’s confirmation.  As a clerk for Justice Marshall, Kagan wrote that she was “not sympathetic” to a constitutional challenge of Washington D.C.’s gun-control law which was overturned by the Supreme Court in 2008 in the hotly debated D.C. v Heller decision.

During her confirmation hearings for Solicitor General, Kagan said she would uphold the court’s ruling because the decision is “settled law.”

She’s expected to be grilled about a paper she wrote while working in the Clinton administration that led to an executive order banning a variety of semiautomatic weapons.  The White House argues Kagan’s role in the Clinton administration was primarily to give advice and counsel and that she played no part in creating policy.

Kagan to Be Grilled On Abortion

The country is so divided on the issue of abortion; it makes it a politically tricky topic to discuss.  It’s like the third rail in national politics, you step on it and you die.  But it wouldn’t be a Supreme Court confirmation hearing without talking about the hot button issue.

Many pro-lifers are worried about Kagan’s stance on abortion because they believe she’s pro-choice.  They point to a memo she authored while working in the Clinton White House.  The memo recommended the President support a ban on late-term abortions excluding cases where the mother’s life or physical health would be in danger by not having the abortion.

In a letter written to Senators by the National Right to Life Committee, the pro-life group argues, “The picture that emerges of Kagan is not that of a staffer who presented the President objective information and disinterested analysis but, rather, a staffer who sometimes presented selective and tendentious information and who employed a variety of legal and political arguments to achieve her overriding goal of defeating the legislation.”  This, to encourage lawmakers not to confirm Kagan to the high court.

Kagan Takes Conservative Heat on Gay Rights Issues

During her tenure as dean of Harvard Law School, Kagan raised eyebrows, and new much criticism, for temporarily barring military recruiters from the school’s resources office because of the military’s “Don’t Ask, Don’t Tell” policy; baring gay men and women from serving openly in the military.

She had little choice but to allow recruiters back on campus after the Federal Government threatened to revoke millions of dollars in aid to Harvard for not allowing the military recruiters to work on campus.

Republicans have portrayed Kagan as “anti-military” because of the decision to bar the recruiters in the first place.  But Democrats are standing up against Kagan’s opposition.  Democratic Senator John Kerry wrote, in an op-ed defending Kagan, “Like me, Kagan has never made it a secret that she opposes ‘Don’t ask, don’t tell’ – so, by the way, do [Defense] Secretary [Robert] Gates and [Chairman of the Joint Chiefs of Staff] Admiral [Mike] Mullen.  But Elena Kagan’s actions as dean don’t speak to her political beliefs, they simply reflect current law.”

But some liberals are concerned about Kagan’s more conservative view on gay marriage.  During her Solicitor General Confirmation Hearing, she said, “There’s no federal constitutional right to same sex marriage.”  She also defended the Defense of Marriage Act, which says states don’t have to recognize same-sex marriages performed in other states.

Either way, it looks like Kagan’s future is far from settled.  Lawmakers will begin taking cracks at her Monday at noon (eastern) on Capitol Hill.

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June 28, 2010 - Posted by | News & Current Events | , , , , , , , , , , , , , , , , , , , ,

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