Senate Republicans argued on Tuesday that Supreme Court nominee Elena Kagan should not be confirmed to the bench, questioning her commitment to upholding the Constitution and whether she could judge without political bias.
“Does the Constitution control her, or does she think she may control the Constitution?” asked Sen. Orrin Hatch (R-Utah).
|Cartoon courtesy of Brett Noel|
“This is a grave decision we have here in the Senate,” said Hatch, as President Obama’s nominee began her last hurdle to confirmation—three days of debate followed by the final vote at week’s end, the last action for the Democratic-controlled Congress before it leaves for summer recess.
With five Republicans declaring they will vote in favor of Kagan, Sen. Jeff Sessions of Alabama, ranking member of the Judiciary Committee, urged the rest of his caucus to cast their final vote with their conscience.
“We’re not lemmings here,” Sessions said. “We have a constitutional duty to make an independent decision.”
Republicans said Kagan failed to meet the high standards for the lifetime appointment, that she did not show an impartial commitment to the rule of law, and that having never served as a judge, she lacked basic judiciary experiences.
Republicans argued during her July confirmation hearings that the 50-year-old New Yorker will be another addition to what they say is a growing trend of activist liberal judges crafting laws, rather then interrupting laws.
In kicking off Tuesday’s debate, Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee picked up on the theme and said it is conservatives who have control of the judiciary and that their goal is to set the clock back 100 years when child slavery was acceptable and minimum wage didn’t exist.
Leahy said the “active conservative majority” wants to undermine Social Security, Medicare, the Civil Rights Act, and environmental laws that protect air and water.
“The radical consequences of their narrow-minded agenda would be to erode Congress’s ability to promote the general welfare of the American people,” Leahy said. “These critics wish to return to the conservative judicial activism of the early 1900s.”
“What we have seen all too often these last years is the activist conservative members of the Supreme Court substituting their own judgment for those of the American people’s elected representatives,” Leahy said.
Republicans said they are troubled by Kagan’s lukewarm support for 2nd Amendment gun rights, her interference of military recruitment on the campus of Harvard Law School when she served there as dean, and her tactics as a Clinton Administration aide to keep partial-birth abortion legal.
Hatch questioned whether she was truthful about her role in what he called a “sham ban” on the “barbaric practice” of abortion.
“I don’t think she was forthcoming in that part of the hearing, it bothered me,” Hatch said. “It looked like politics controlled the law.”
Kagan has denied editing critical language in a memo on partial-birth abortion in order to distort the medical need for the procedure, language that ultimately swayed a Supreme Court decision on state bans of the procedure.
In a letter distributed to his colleagues before the debate began, Sessions said that Kagan’s record on the 2nd Amendment “shows that she will be hostile to the rights of law-abiding citizens to own and possess firearms.”
“During her time in the Clinton White House, she worked to advance President Clinton’s anti-gun agenda and even appears to have identified the NRA as a ‘bad’ organization, placing it in the same category as the KKK,” Sessions said.
The final vote could come as early as Thursday, but leaders on both sides of the aisle are still arguing over procedures that could delay it as the last vote before Congress leaves for recess on Friday.
Republicans who say they will support Kagan include Senators Lindsey Graham of South Carolina, Judd Gregg of New Hampshire, Susan Collins and Olympia Snowe of Maine, and Richard Lugar of Indiana.
Sen. Ben Nelson of Nebraska is the only Democrat to declare his opposition for Kagan, and said in a statement, “I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns.”
The women of the Senate filed onto the floor late afternoon to show solidarity for Kagan, who would become the fourth woman to ever sit on the court and would replace retiring Justice John Paul Stevens.
Sen. Kirsten Gillibrand, a Democrat from Kagan’s home state of New York, called the nominee a “stalwart defender of the Constitution.”
With hands waving in the air and fingers shaking and pointing, Gillibrand said she was disturbed that Republicans would “question the facts” of her “profound and exceptional understanding of the Constitution.”
“Elena Kagan has made it clear that she is eminently qualified to serve as a Supreme Court justice,” Gillibrand said.
Leahy said it’s the fault of Republicans that Kagan lacks actual experience on the bench.
“President Clinton nominated her to the D.C. Circuit in 1999 and it was Senate Republicans who refused to consider her nomination. Had they done so, she would have more than 10 years of judicial experience,” Leahy said.