Elena Kagan may be a “safe” pick for President Obama, but that doesn’t mean she’s untouchable, and Republicans will be busy over the next several weeks combing through her history for controversial baggage to bring up during the confirmation hearings. Sure, there’s some grumbling on the left that Kagan wasn’t committed to racial diversity while dean of the Harvard Law School, or that she was cozy with Goldman Sachs, but let’s be honest, the Democrats in the Senate will uniformly support this nomination. It’s only the Republicans who truly matter, and these are some of the emerging story lines they’re already promoting or may embrace for the confirmation hearings.
She Doesn’t Think the Constitution Was Perfect in 1787!
Michael Steele and the RNC are going after Kagan’s “support for statements suggesting that the Constitution ‘as originally drafted and conceived was defective.’” The “defective” line comes from a speech Thurgood Marshall gave in 1987, in which the Supreme Court’s first black justice recounts the document’s major, glaring flaws, like the fact that it allowed slavery to continue and withheld voting rights from women. Politico’s Ben Smith “can’t imagine many people disagree” with Marshall, making this an “odd line of attack.” If this is the RNC’s opening shot, the Plum Line’s Greg Sargent thinks “the remaining arrows in the quiver may be pretty dull indeed.” And Washington Monthly’s Steve Benen calls this strategy “offensive and dumb.”
We Don’t Know Anything About Her. Or Do We?
Paul Campos writes for the New Republic that, with no experience as a judge and with few published works, “nobody seems to know what Kagan’s views are on most political issues, nor does anyone know what she believes about how judges ought to interpret the Constitution, how much deference courts should give to Congress and state legislatures, and what role the judiciary should play in checking the powers of the executive branch.” Arizona senator Jon Kyl agrees, adding that the one policy position she has taken was anti-military. Even the New Yorker’s Jeffrey Toobin, a friend of Kagan’s, says that her “views were and are something of a mystery. She has written relatively little, and nothing of great consequence.” This lack of a paper trail, Matthew Yglesias of Think Progress points out, makes her a “perfect candidate” for a system that rewards nominees for not sharing their beliefs. Salon’s Glenn Greenwald, meanwhile, thinks that “a blank slate, institution-loyal, seemingly principle-free careerist” is par for the course for the Obama administration. But the New Republic’s Jonathan Chait believes that “it is possible, through the kind of engagement Obama and others have had with Kagan, to paint a portrait of a legal mind no less accurate than the portrait we have of many Supreme Court nominees.”
What Does She Think About Health-Care Reform?
As lawsuits against the constitutionality of health-care reform wind their way through the courts, Republicans may try to make it an issue at Kagan’s confirmation hearings, at least according to Wyoming senator John Barrasso. Washington Post columnist George Will doesn’t expect Kagan to “directly address the specifics of the health-care legislation,” but “careful questioning should be able to illicit [sic] from her enough evidence of her jurisprudence to enable senators to make reasonable surmises about whether she believes the Constitution still places any discernible restrictions on Congress.”
Playing by Her Own Rules?
Supreme Court nominees have been programmed to avoid taking positions on any hot-button issues, especially perennial confirmation-hearing favorites like abortion and affirmative action. In 1995, Kagan slammed this state of affairs, calling for senators to force Supreme Court nominees to open up about their opinions, lest the confirmation hearings remain the “vapid and hollow charade” they have become. Last year, Kagan backtracked from that sentiment in her own confirmation hearing, telling Senator Orrin Hatch that there “has to be a balance” between openness and discretion. Nevertheless, will her 1995 words come back to haunt her when she tries to engage in the same stonewalling she had previously decried? Ashby Jones at The Wall Street Journal’s Law Blog expects “Republicans to quote freely and liberally from her 1995 article as justification to pin her down on the tough issues.” On cue, John Cornyn, a Republican on the Senate Judiciary Committee, tweeted an ominous warning today: “Kagan once called judicial hrgs a ‘vapid and hollow charade.’ We’ll see.”
Who Are You Calling a Dictator?
In 2005, Kagan was one of four law-school deans to sign a letter criticizing a proposal to strip the Supreme Court of oversight over Guantánamo detainees, comparing it to laws America has challenged when passed under “dictatorships.” This may ease the fears of some liberals and libertarians about Kagan’s stance on expansive executive power, but it “could provoke the ire of Republican critics,” according to the Daily Caller’s Jonathan Strong.