- The Washington Times - Sunday, June 27, 2010

The first time Elena Kagan appeared before the Senate Judiciary Committee, she deftly deflected the initial Republican attack she faced on her way to a smooth confirmation as the Obama administration’s solicitor general.

Ms. Kagan returns to the committee Monday, and the stakes are much higher, as a seat on the Supreme Court hangs in the balance.

And while Ms. Kagan’s confirmation is all but assured, this week’s hearings will give the American public another chance to see how she handles what is expected to be withering Republican opposition.

President Obama nominated Ms. Kagan, 50, in May to replace Justice John Paul Stevens, who is retiring after 35 years on the bench. If confirmed, she will join Justices Ruth Bader Ginsburg and Sonia Sotomayor, Mr. Obama’s first appointment, on the bench — the first time three female justices will have served together on the high court.

Last year, during Ms. Kagan’s nomination hearings for solicitor general, the first Republican attack she faced came from Sen. Arlen Specter of Pennsylvania, who was the top Republican on the committee at the time.

Mr. Specter, who has since changes parties, grilled her about a memo she wrote as a clerk for Justice Thurgood Marshall some 20 years earlier. The memo questioned whether religious organizations should be allowed to receive federal funding to deal with issues surrounding teen pregnancy, and Ms. Kagan quickly thanked Mr. Specter for bringing it up.

“I first looked at that memo, thought about that memo, for the first time in 20 years, I suppose, just a couple of days ago when it was included on a blog post,” Ms. Kagan said. “And I looked at it and I thought, ‘That is the dumbest thing I have ever heard.’”

As laughter filled the hearing room, Mr. Specter replied: “You do not have to go any further.” Her ease in handling the senator’s question set the tone for the rest of the hearing, which ended uneventfully and with her easy confirmation as solicitor general.

It is unlikely Republicans will be as easily deterred again, but the GOP is hamstrung somewhat by Ms. Kagan’s lack of a judicial record. She stands to become the first justice to ascend to the Supreme Court in 40 years who has not previously served as a judge.

During the Sunday television talk shows, several leading Republican senators questioned whether Ms. Kagan could be an impartial judge while Democrats praised her record and predicted easy confirmation.

Sen. Jeff Sessions of Alabama, the Judiciary Committee’s ranking Republican, said the nominee has “real problems” she will have to address, including whether she is “committed to the rule of law even if she may not like the law.”

Mr. Sessions also asked whether her lack of judicial experience meant she would put more focus on her political views.

Sen. John Cornyn, Texas Republican, said the hearings could be as much about Mr. Obama as Ms. Kagan, adding the president was “trying to get somebody through who has a very sparse record and who he believes will be a reliable vote on the left wing of the United States Supreme Court.”

Committee Chairman Sen. Patrick J. Leahy, Vermont Democrat, said the hearing would showcase Ms. Kagan as “a brilliant woman, a brilliant legal mind.”

Before becoming solicitor general, Ms. Kagan was the dean of the Harvard Law School. And it was an incident during her time at Harvard that has so far provided the most fodder for Republicans.

In 2004, Ms. Kagan banned military recruiters from campus in protest over the Pentagon’s policies on gays. Her defenders insist the nominee was simply following the law as it worked its way through the courts, but Ms. Kagan banned the recruiters as soon as an appeals court in 2004 struck down a law tying federal funding to allowing military recruiting on campus.

She acted despite the court’s order the ruling not take effect until the Supreme Court reviewed the case.

“Perhaps to some in the elite, progressive circles of academia, it is acceptable to discriminate against the patriots who fight and die for our freedoms,” Mr. Sessions said June 16. “But the vast majority of Americans know that such behavior is wrong, it has arrogance about it, and really it is not ethical.”

The episode involving the recruiters offers one of the few insights into Ms. Kagan’s thinking on any issue — during her 2009 confirmation as solicitor general she called abortion and gun rights legally settled matters.

In recent weeks, the White House has carefully managed the release of documents related to Ms. Kagan’s work for the Clinton administration. She worked for President Clinton, first as an associate counsel and later as deputy assistant for domestic policy, from 1995 to 1999.

The tens of thousands of pages of documents revealed nothing that appears to put Ms. Kagan’s nomination in doubt, but they did lead Minority Leader Sen. Mitch McConnell, Kentucky Republican, to call her a “political lawyer.”

“We must be convinced that someone who has spent the better part of her career as a political adviser, policy advocate and academic — rather than as a legal practitioner or a judge — can put aside her personal and political beliefs, and impartially apply the law, rather than be a rubber stamp for the Obama or any other administration,” Mr. McConnell said in a statement.

“The Clinton library documents make it harder — not easier — to believe that Ms. Kagan could make that necessary transition,” he said.

• Ben Conery can be reached at bconery@washingtontimes.com.

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