Vote on Supreme Court nominee Elena Kagan delayed one week
The decision to delay the Senate Judiciary Committee vote on Supreme Court nominee Elena Kagan is routine. It points to Republican concerns about Ms. Kagan.
The routine hold was expected. It means the committee will reconvene July 20 for debate and a vote on whether Kagan’s nomination should be sent to the full Senate.
The only drama at the committee level will be whether Kagan will win the votes of Republican members and how aggressively Republican opponents attack her nomination.
Committee Chair Patrick Leahy (D) of Vermont said that in his view the one-week hold was not necessary. “I think everybody’s made up their mind,” he said. But he granted the requested delay in recognition of the long-standing procedural rule.
Senator Sessions said he was concerned about Kagan’s testimony about her role in excluding military recruiters from Harvard Law School’s office of career services.
"It almost appeared she seemed to think she was just caught up in a series of events, for which she was not much of an activist player,” he said. “I didn’t feel like her testimony reflected adequately her fundamental role [in excluding the military from the career services office].”
At the time, federal law required that law schools afford military recruiters equal access to student career facilities as any other recruiters. Kagan changed the law school’s policy to bar military recruiters from the same office used by other recruiters.
Sessions expressed concern about Kagan’s testimony on her work related to partial-birth abortion, gay rights, and the second amendment.
He questioned Kagan’s testimony that she played no role in the Obama administration’s response to a major legal challenge filed in March by a group of state attorneys general seeking to have the new health care law struck down as unconstitutional. Kagan’s potential involvement is important because it might require her to recuse herself from hearing the case when – or if – it reached the high court.
“If confirmed, Ms. Kagan would be the decisive vote, perhaps, in that case,” Sessions said.
When asked during the hearing if she was consulted within the administration on the issue, she replied “No.”
“It’s all but inconceivable to me that … she did not participate as a counsel or adviser to the administration on the matter or express her opinion on the merits of the case,” Sessions said. He said the lawsuit was “the most significant constitutional challenge to the administration’s most significant legislative accomplishment to date.” The senator said he found it “difficult, if not impossible, to believe” Kagan was not consulted.
Kagan’s lack of experience as a judge or legal practitioner was also troubling, Sessions said. “Fundamentally, the nominee lacks the experience and the intellectual rigor that you develop from full-time practice of law or from serving as a judge,” he said. “She’s had neither of those experiences, and I think it showed in her testimony. You may not agree. In my opinion, her testimony lacked the clarity, the strict intellectual honesty that I think we should look for in a nomination to the Supreme Court.”
Leahy offered a much different assessment of Kagan’s qualifications and her performance during the recent confirmation hearings.
“Her intelligence, grounding in the law, and humor were evident to all,” he said.
She fielded more than 500 questions from senators at the hearings and an additional 200 written questions afterward.
“Solicitor General Kagan demonstrated impressive knowledge of the law and fidelity to it,” he said. “She spoke of judicial restraint, her respect for our democratic institutions, her commitment to the Constitution and the rule of law.”
“She made clear that she’ll base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda,” Leahy said.
“The solicitor general made us one pledge,” he said – “that she would do her best to consider every case impartially, modestly, with commitment to principle and in accordance with the law.”