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Skeptical Republicans Await Kagan's Answers

If confirmed, Elena Kagan will replace one of the court's most liberal justices, 90-year-old John Paul Stevens.
Tim Sloan
AFP/Getty Images
If confirmed, Elena Kagan will replace one of the court's most liberal justices, 90-year-old John Paul Stevens.

It's a day of firsts and lasts on Monday. It's the last day of the Supreme Court's current session and the final day on the job for the longest-serving justice on this court, 90-year-old John Paul Stevens. It's also the first day of confirmation hearings for Elena Kagan, whom President Obama has nominated to replace Stevens.

Kagan breezed through similar hearings last year to become solicitor general, but this time Senate Republicans seem intent on questioning her credentials for a lifetime seat on the highest court.

Kagan's nomination does not imperil the conservative tilt of the "Roberts Court," as the Supreme Court under Chief Justice John Roberts is known. After all, she'd be replacing one of the court's most liberal justices. Nevertheless, Jeff Sessions, who's the top Republican on the Judiciary Committee she faces Monday, had a stern warning regarding those hearings:

"This nominee has a number of controversial items in her background that raise questions," the Alabama senator said a few days ago. "This is not a coronation, it's a confirmation."

Seven Senate Republicans voted to confirm Kagan last year as solicitor general. One of them was Utah's Orrin Hatch. But, like many other Republicans, Hatch now questions whether Kagan, who's never been a judge, has the right resume for this job:

"Supreme Court justices have had experience behind the bench as a judge, before the bench as a lawyer, or both," Hatch said. "Kagan has neither."

Kagan did work two years for a large law firm. She was also dean of Harvard Law School. Republicans say they'll press her, just as they did last year, about having barred military recruiters from using the law school's facilities. She did so citing the Pentagon's discrimination policy against gays. Kagan also served several years in the Clinton White House as a policy adviser. Minority leader Mitch McConnell of Kentucky raised red flags about that posting last week on the Senate floor.

"Her notes and memoranda reveal that all too often her policy advice and actions were based, first and foremost, on what was good for Democrats," McConnell said. "This kind of thinking might be OK for a political adviser. But there's a place for politics and for advocating for one's party, and that place is not on the Supreme Court."

The GOP's effort to portray Kagan as a political activist has been reinforced by an online video produced by the anti-abortion group Americans United for Life. It focuses on Kagan's praise for the chief justice of Israel's Supreme Court, Aharon Barak, describing him as the world's most radical advocate for an agenda-driven judiciary. "He is my judicial hero," Kagan says in the video.

Barak may be Kagan's judicial hero, but he's also won high praise from Antonin Scalia, one of the high court's most conservative justices. Democrats on the Judiciary Committee, meanwhile, are responding to Republicans' charges by arguing that conservatives on the Roberts Court are the real judicial activists.

"They have reversed precedent and congressional intent and ruled on the side of big business over individual rights," Maryland Sen. Ben Cardin says. "This is judicial activism, not judicial restraint."

Other committee Democrats say they'll make the case that Kagan's lack of judicial experience is outweighed by an abundance of real-world experience. Minnesota Sen. Amy Klobuchar is optimistic about Kagan's prospects:

"You never say 'safe' when you're dealing with the Judiciary Committee in the United States Senate and the partisan times we're in, but I would predict there'll be some Republicans standing up in supporting her," she says.

One of them could possibly be Texas Republican John Cornyn, who says he hasn't decided how he'll vote yet. "I think in fairness to the nominee, we ought to give her a chance to answer the questions," he says.

He'll find out the answers in the next few days.

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