Kagan's Confirmation to High Court Not Guaranteed, Senator Sessions Says

U.S. Supreme Court nominee Elena Kagan may still face a Senate filibuster should she fail to assure lawmakers that she won’t pursue an activist agenda from the bench, Senator Jeff Sessions of Alabama said today.

“If things come out to indicate she’s so far outside the mainstream, it’s conceivable a filibuster might occur,” he said today on CBS’s “Face the Nation” program. Sessions is the ranking Republican on the Senate Judiciary Committee, which opens hearings tomorrow on Kagan’s nomination. Sessions said the nomination has “real problems.”

Senate confirmation of Kagan, President Barack Obama’s second Supreme Court nominee, would for the first time give the court three female members. Republicans are questioning Kagan’s lack of judicial experience and what they call an activist, liberal past, pointing to prior remarks and work on issues including abortion, gun control and campaign finance.

“I need to be sure that her activist background will not be taken to the court,” Senator Lindsey Graham, a South Carolina Republican and a member of the Judiciary Committee, said today on “Fox News Sunday.”

John Cornyn of Texas, chairman of the National Republican Senatorial Committee and a Judiciary Committee member, said it’s “simply premature” to comment on whether Republicans might filibuster to block a Senate floor vote. Democrats control the Senate 59-41, one vote short of the 60 needed to overcome the delaying tactic.

“The problem is that Ms. Kagan has a very sparse record,” Cornyn said today on CNN’s “State of the Union.” Kagan’s ‘main record” is that of a political strategist and adviser in President Bill Clinton’s White House, he said.

‘Thin Record’

Sessions also challenged Kagan’s experience.

“This nominee has a very thin record legally: never tried a case, never argued before a jury, only had her first appearance in the appellate courts a year ago,” he said. “She just is not the kind of nominee you would normally expect to have.” Her confirmation is not a “done deal,” Sessions said.

Sessions questioned whether Kagan will “as a judge subordinate herself to the Constitution and keep her political views at bay?”

Democrats say Kagan, 50, would add needed diversity to a court made up entirely of former lower court judges. Obama called her a “trailblazing leader” and “an acclaimed legal scholar” when he nominated her on May 10 to replace retiring Justice John Paul Stevens.

Solicitor General

Obama appointed Kagan last year as solicitor general, the U.S. government’s top Supreme Court lawyer, making her the first woman to fill that office. Among her supporters are all eight living former solicitors general, four of whom are Republican.

The American Bar Association, the nation’s largest legal professional group, last week declared Kagan well qualified to serve on the court. She is a graduate of Princeton University and Harvard Law School.

Senator Dianne Feinstein, a California Democrat and member of the Judiciary Committee, said Kagan is “superbly qualified” and in step with “legal thinking in the United States.”

She will bring a new “mainstream breath” to the Supreme Court, Feinstein told Fox News Sunday.

Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, predicted today that Kagan will be seen during the hearings as a “brilliant legal mind.”

“Let’s hear from her,” Leahy said today on “Face the Nation.” “At the end of the week people’s views may be entirely different.”

‘Earn Her Way’

Graham said that, while he views Kagan as “well qualified” and sees no need at this time for a filibuster, she must “earn her way onto the court.” In particular, Kagan must explain her comment that Aharon Barak, former president of Israel’s Supreme Court, is her “judicial hero,” Graham said.

“I want to hear why she picked this guy in Israel to be her judicial hero because he said some things way out of the American mainstream,” Graham said. “She’ll have to convince me that all of this liberalism that she’s lived with all her life can be put in a proper place.”

Barak expanded the powers of Israel’s high court and the range of issues over which it has the last word.

Kagan also must explain her decision while Harvard Law School dean to prohibit military recruiters from the campus career center. The university adopted the rule to protest the military’s “don’t ask, don’t tell” rule barring openly gay service.

Senator John McCain of Arizona, the ranking Republican on the Armed Services Committee, said today on NBC’s “Meet the Press” program that he’s “disturbed” about Kagan’s “obvious steadfast and even zealous opposition to military recruiters, to the presence of military on the campus of the most prestigious university in the view of many in America.”

To contact the reporters on this story: Kim Chipman in Washington at kchipman@bloomberg.net; Greg Stohr in Washington at gstohr@bloomberg.net.

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