A User's Guide to the Kagan Hearings

After Supreme Court Justice John Paul Stevens announced his retirement plans April 9, President Obama waited a month before nominating Solicitor General Elena Kagan for the vacancy. Her confirmation hearings before the Senate Judiciary Committee will begin Monday, June 27.

BIOGRAPHY: Kagan, 50, is a native of New York City’s affluent Upper West Side. She graduated summa cum laude from Princeton University in 1981, writing her senior thesis about the history of socialism. She attended England’s Oxford University on an honors scholarship, receiving a master’s degree in philosophy in 1983, then attended Harvard Law School, where she was an editor of the law review and graduated magna cum laude in 1986. She then served as a law clerk for two years, first for federal appeals court Judge Abner Mikva and then for Supreme Court Justice Thurgood Marshall, before joining a leading D.C.-based law firm, Williams & Connolly.

In 1991, Kagan became a professor at the University of Chicago law school, then joined the Clinton administration in 1995 in the White House counsel’s office, later becoming deputy director of the Domestic Policy Council. President Clinton nominated Kagan to an appeals court judgeship in 1999, but the Republican-controlled Senate refused to scheduled hearings, effectively blocking the nomination. In 2001, Kagan joined the law faculty at Harvard, becoming the first female dean of the university’s law school in 2003.

CONFIRMATION POLITICS: Republican senators initially expressed little strong opposition to Kagan’s Supreme Court nomination. Kagan’s appointment to replace the liberal Stevens would not change the court’s ideological balance. Professor Glenn Reynolds called her "a wise pick for a president who is no longer flying high in the polls, and who can’t afford a contentious confirmation fight." When she was chosen as solicitor general, seven Republicans were among the 61 senators who voted to confirm her (all 31 “nay” votes were Republicans) in 2009. However, the Supreme Court is a lifetime appointment and Kagan can expect sharp questioning from Republican senators during her Judiciary Committee hearings, chaired by Sen. Patrick Leahy (D-Vermont). Kagan’s nomination will almost certainly be approved by the committee, where Democrats outnumber Republicans 12-7. Can opponents muster the 41 votes necessary to block her nomination with a filibuster on the Senate floor? It’s a long shot, although if Kagan makes any clear missteps during her committee hearings, and conservative activists can fire up the grassroot opposition in this mid-term election year, GOP senators – and perhaps even some embattled Democrats facing strong challengers in November – could turn against her.

ISSUES AND CONTROVERSIES: Her supporters describe Kagan as non-ideological and pragmatic, but her record clearly defines her as a liberal. Most criticism of Kagan comes from conservatives, although she is also viewed with some suspicion by various liberal groups and activists. Among the subjects that may stir controversy during her confirmation hearings:

  • Anti-Military Views – As dean of Harvard Law School, Kagan supported a university policy banning military recruitment on campus in protest of the Pentagon’s “don’t ask, don’t tell” policy on homosexuals in the armed forces. In a 2003 e-mail to Harvard students, Kagan wrote: “I abhor the military’s discriminatory recruitment policy,” calling it “a moral injustice of the first order.”
  • Abortion Questions – Pro-life activists are among the staunchest opponents of the Kagan nomination. Americans United for Life has issued a series of memos called the “Kagan File” and helped organize conservative opposition to Kagan. At the same time, however, the liberal pro-choice group Center for Reproductive Rights has questioned Kagan’s commitment to legal abortion, noting a 1988 memo she wrote while a clerk to Justice Marshall, in which Kagan seemed willing to accept some limits on late-term abortion.
  • Judicial Philosophy — Conservatives who suspect Kagan of taking a liberal activist approach to law have cited her praise for Israeli Supreme court judge Aharon Barak as "my judicial hero." An online video of that 2006 speech went viral last week, and U.S. News & World Report columnist Paul Bedard reported: "Republican Senate aides say Kagan’s praise for the self-described activist judge will be one of two key issues the GOP will press Kagan on."
  • The Race Card – Despite her solid liberal credentials, Kagan’s record has raised questions from some civil rights organizations. As the Washington Post reported, leaders of such groups as the National Bar Association (the leading organization of black lawyers) and the Mexican American Legal Defense and Educational Fund have expressed skepticism about Kagan’s commitment to affimative action and her positions on racial profiling and immigration issues.
  • The Bork Factor – If opponents manage to defeat Kagan’s nomination, she’ll have no room to complain, having praised the success of liberals in blocking the Supreme Court nomination of Judge Robert Bork, whom President Reagan appointed in 1987. Video of a speech Kagan gave in 1997 shows her proclaiming: “I loved what happened in the Bork hearings. . . . The Bork hearings were the best thing that ever happened to constitutional democracy.” As might be expected, Bork himself is among Kagan’s critics, participating in a June 24 conference call organized by Americans United for Life in which he said of the nominee: “Ms. Kagan has not had time to develop a mature philosophy of judging . . . The academic world is not a place in which you learn prudence and caution, and other virtues of a judge, and she has not had experience anywhere else that I know of.”