Elena Kagan follows Supreme Court nominee rulebook: be bland

One hurdle for a Supreme Court nominee is to get through the first week without creating a controversy. So far, Elena Kagan has negotiated the halls of Congress deftly – and quietly.

By , Staff writer

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    Supreme Court nominee Elena Kagan meets with Sen. Patrick Leahy (D) of Vermont on Capitol Hill Wednesday.
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Ever since Judge Robert Bork’s unsuccessful nomination to the Supreme Court stumbled out of the gate in 1987, high court nominees – and their backers – have consciously sought to avoid the same fate.

That means an attention to detail from the moment the nomination is announced. Judge Bork was skewered by Sen. Edward Kennedy (D) of Massachusetts on the floor of the Senate less than an hour after President Reagan had unveiled the nomination. Bork never recovered.

Elena Kagan has passed her first few days as President Obama’s latest court nominee according to script – that is, without saying anything remotely or potentially controversial. Ms. Kagan held her first courtesy calls with senators Monday, a part of the pre-confirmation-hearings ritual. In public comments before their meeting, Senate majority leader Harry Reid (D) of Nevada pledged to do what he could to ensure a smooth transition.

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In remarks on the Senate floor before meeting with Kagan, Senate minority leader Mitch McConnell (R) of Kentucky warned that Kagan’s position as a member of the administration (solicitor general) and friendship with Obama must not hinder her judgment if she joins the court.

“It’s my hope that the Obama administration doesn’t think the ideal Supreme Court nominee is someone who would rubber stamp its policies,” Senator McConnell said. “But this nomination does raise the question. And it’s a question that needs to be answered. Americans want to know that Ms. Kagan will be independent, that she won’t prejudge cases based on her personal opinions, that she’ll treat everyone equally, as the judicial oath requires.”

After Kagan’s meetings with senators, public statements were predictably bland. Sen. Orrin Hatch (R) of Utah, a member of the Senate Judiciary Committee, said he appreciated the opportunity to meet with her and “will thoroughly examine her record to determine whether she would fairly and impartially use the Constitution, not her personal views, to guide her decisions.”

Kagan’s backers have wasted no time advocating on her behalf. On Monday, the day of her nomination, a group called the Coalition for Constitutional Values was already up with a biographical TV ad supporting her. The White House produced its own feel-good video, which Obama’s political wing at the Democratic National Committee is encouraging supporters to share with friends via e-mail.

Kagan skeptics have floated a number of objections to her nomination, but nothing has caught fire in a way that looks potentially fatal to confirmation:

  • Kagan’s lack of judicial experience is one common argument, though through history, many justices – some among the most illustrious – also had never served as judges before joining the high court.
  • Her East Coast Ivy League inside-the-Beltway life story, with a detour at the University of Chicago (which some would call more of same), has led critics to suggest she has little “real world” experience.
  • Her scant paper trail leaves some liberals worrying she’s a stealth candidate who cannot be fully counted upon on key court holdings, such as the right of privacy found in the Roe v. Wade abortion decision.
  • Her hiring record as dean of Harvard Law School, in which she hired no black law professors during her six-year tenure, has been cause for concern among some black activists.
  • Her controversial stand on US military recruitment at the law school will surely be scrutinized at the hearings.

But perhaps just as important to how Senate Republicans will vote when confirmation hearings start is the political season. November midterms are fast approaching, and some senators are apprehensive. Even Senator Hatch, who is not up for reelection until 2012, has to be looking over his shoulder, following the defeat of fellow Utah Sen. Bob Bennett at the state GOP’s nominating convention last Saturday.

“Politics probably complicates things,” says John Maltese, a political scientist at the University of Georgia, Athens, and expert on federal court confirmations. “I think senators will be concerned about reelection and threats of retaliation for how they vote, either way.”

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