Kagan Hearing Offers Stage for Framing November Election Debate

When the Senate opens confirmation hearings for Elena Kagan’s nomination to the U.S. Supreme Court today, November’s midterm elections may dominate the discussion as much as the nominee’s legal record.

With both Republicans and Democrats predicting that Kagan will be confirmed, senators may use the televised forum of the Senate Judiciary Committee as a venue to frame the issues in fall contests that will determine control of Congress and the sweep of President Obama’s agenda.

“The Supreme Court nominations have become highly politicized,” said Wayne Steger, a political science professor at DePaul University in Chicago. “It’s the one area where the whole culture wars come out. We don’t see it anywhere near as much in any other issue.”

Kagan’s confirmation by the full Senate would place three women on the Supreme Court for the first time in its 221-year history.

She is a heavy favorite to become the court’s 112th justice, with lawmakers predicting confirmation barring a major gaffe during this week’s hearings. Kagan will make an opening statement today after the 12 Democrats and seven Republicans on the Senate Judiciary Committee have an opportunity to speak.

Kagan, Obama’s second nominee to the high court, would become the fourth woman to serve on the court. She has never been a judge and worked for four years in the White House when Bill Clinton was president. Republicans say they will question her lack of judicial experience and seek to portray her as a partisan activist with a liberal agenda.

‘So Much Unknown’

“There’s so much unknown about her,” said Senator Lindsey Graham, a South Carolina Republican and Judiciary Committee member who has praised her qualifications while saying he hasn’t decided how he will vote. “You’re one sound bite away from creating problems for yourself. So the hearings really matter.”

Kagan, 50, is solicitor general at the Justice Department, the Obama administration’s chief courtroom lawyer and the first woman in that position.

Obama voiced confidence in his nominee’s prospects in the Senate. “As I examine some of the arguments that have been floated against her,” Obama said of Kagan at the close of the G-20 summit in Toronto, “It’s pretty thin gruel.”

Democrats say Kagan, a former dean of Harvard Law School, would be a refreshing addition to a court made up entirely of justices who served on lower courts. Obama called her a “trailblazing leader” and “an acclaimed legal scholar” when he nominated her in May.

‘Understands the Constitution’

“Here’s a woman who understands the Constitution, understands the law, understands the effect of their decisions on ordinary, hard-working Americans,” said Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat.

Democrats control 59 of the Senate’s 100 seats, and a few Republicans such as Graham and Susan Collins of Maine have said she is qualified for the court. Senator Orrin Hatch, a Utah Republican, said last month she probably will be confirmed.

Other leading Republicans are ready to attack.

“This is no time for a stealth candidacy to the court,” said Senator Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee. “We know her political views are leftist and progressive. That is clear from her record.”

A New York native, Kagan was approved by the Senate 61-31 to be solicitor general. If confirmed, she would replace retiring Justice John Paul Stevens. Kagan’s confirmation almost certainly wouldn’t affect the court’s ideological balance, which tilts 5-4 for conservatives on most of the divisive issues.

Sotomayor’s Confirmation

Obama’s first high court nominee, Sonia Sotomayor, was confirmed last year 68-31, with nine Republicans supporting her.

Carl Tobias, a law professor at the University of Richmond in Virginia, said the Judiciary Committee may be even more polarized than the full Senate. It includes Richard Durbin of Illinois and Charles Schumer of New York, the second- and third- ranking Senate Democratic leaders. On the other side are Jon Kyl of Arizona, the No. 2 Republican leader, and John Cornyn of Texas, chairman of the Senate Republicans’ fundraising arm.

“It makes for a very partisan group,” Tobias said.

Republicans say Kagan can expect tough questions about recently released documents from her White House years. She served as an associate counsel to Clinton in 1995 and 1996 and a deputy assistant for domestic policy from 1997 to 1999.

Many of the records reflect an aide searching for pragmatic solutions for a Democratic president wrestling with a Republican-led Congress on issues such as a ban on a procedure opponents call partial-birth abortion. In one memo she said a federal law banning assisted suicide by doctors would be a “fairly terrible idea.”

Memos Sent

Republicans will also focus on memos she wrote as a law clerk to former Justice Thurgood Marshall. In one 1987 memo, she urged Marshall to vote against hearing a Washington man’s appeal in a gun control case. She said she was “not sympathetic” to his claim his rights were violated when he was convicted for carrying an unlicensed pistol.

Sessions has challenged her decision as Harvard law school dean, a job she held from 2003 to 2009, to bar military recruiters from the campus in protest of the Pentagon’s ban on openly gay troops. Kagan backed a lawsuit seeking to overturn the withholding of federal funds from schools that blocked the recruiters.

Democrats say they will use the hearings to examine the court’s record under Chief Justice John Roberts, who was appointed by Republican President George W. Bush.

Campaign Finance Ruling

Obama and the Democrats have criticized the court’s 5-4 ruling this year in Citizens United v. Federal Election Commission, which overturned limits on corporate election spending. Another target: a 2008 decision that cut a $2.5 billion punitive damage award against Exxon Mobil Corp. for the 1989 Valdez disaster to $507.5 million.

In announcing Kagan’s nomination, Obama said she “has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations.”

Democratic Senator Sheldon Whitehouse of Rhode Island, a Judiciary Committee member, said Roberts hasn’t lived up to his confirmation hearing promise to be an impartial umpire.

“It seems the strike zone for individual plaintiffs is a lot smaller in this court than the strike zone for the big corporations,” Whitehouse said.

To contact the reporter on this story: Laura Litvan in Washington at llitvan@bloomberg.net

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