WASHINGTON — Leading Republican senators on Sunday questioned whether Supreme Court nominee Elena Kagan could be an impartial judge as they tried to inject some drama into her upcoming confirmation hearing.
Democrats praised Kagan’s record and predicted she will win confirmation as the 112th justice — and only the court’s fourth woman. President Barack Obama, meanwhile, dismissed GOP-led criticism of Kagan as “pretty thin gruel.”
The Senate Judiciary Committee begins the weeklong hearing today. Kagan is not expected to face questions until Tuesday.
Sen. Jeff Sessions of Alabama, the top Republican on the committee, said Kagan’s nomination has “real problems” that she will have to address.
“I think the first thing we need to decide is, is she committed to the rule of law even if she may not like the law? Will she as a judge subordinate herself to the Constitution and keep her political views at bay?” Sessions said.
Kagan’s lack of judicial experience means more focus on her political views, Sessions said. “She’s been aggressive on issue after issue from the liberal side of the political issues,” he said.
Sens. John Cornyn, R-Texas, and Lindsey Graham, R-S.C., said Kagan would be pressed to explain her role, while dean at the Harvard law school, in limiting military recruiting at the law school because of the Pentagon’s policy of barring openly gay soldiers.
“This policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans,” Graham said.
Cornyn said the hearings could be as much about Obama as his high court nominee. “Clearly this president is 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,” Cornyn said.
Obama rejected that argument. In a press conference at the conclusion of the weekend’s G-20 summit in Toronto, he pointed out that Kagan “has the support, by the way, of a number of very conservative jurists who she’s worked with. So, as I examine some of the arguments that have been floated against her nomination over the last several weeks, it’s pretty thin gruel.”
Kagan, 50, had virtually no courtroom experience before Obama made her his top Supreme Court lawyer last year. She argued six cases at the high court stretching back to September.
She served as Harvard law dean and as a White House aide and lawyer in the Clinton administration sandwiched in between stints as a law professor at the University of Chicago and Harvard. Kagan earlier was a law clerk to Justice Thurgood Marshall.
To blunt Republican opposition, Kagan has attracted considerable support from notable conservative lawyers who served in Republican administrations, including two former solicitors general, Ted Olson and Kenneth Starr. The latter also was the special prosecutor whose investigation led to President Bill Clinton’s impeachment during Kagan’s White House service.
Sen. Patrick Leahy, D-Vt., chairman of the Judiciary committee, said the hearing would showcase Kagan as “a brilliant woman, a brilliant legal mind.”
Sen. Dianne Feinstein, D-Calif., described Kagan as superbly qualified. “I believe the drift net has been out to find some disqualifying factor and it hasn’t been found,” Feinstein said.
But both Leahy and Feinstein agreed that Kagan probably will be asked repeatedly about a 15-year-old article in which she criticized Supreme Court confirmation hearings as largely devoid of substance and called on senators to press nominees about their views.
“She expressed her very strong view that nominees should be more forthcoming, we should be more pressing in our questions,” Feinstein said. “I suspect members will hold her to this.”
Leahy and Sessions appeared on CBS’ “Face the Nation.” Feinstein and Graham were on “Fox News Sunday” and Cornyn spoke on CNN’s “State of the Union.”