The remarks, however, are likely to mean little in the confirmation hearings – not yet scheduled – unless Kagan herself takes the Republican bait. In the end, neither Kagan’s past remarks nor her lack of a judicial record is likely to have a determining factor on her candidacy.
There is nothing to suggest that Kagan will have to be any more forthcoming in her opinions than other nominees have been.
Perhaps the opposite could even be true. As a nominee who so far lacks any flash points regarding her candidacy – no Sotomayor-esque “wise Latina” remark, for example – the less she strays from script the less likely she is to stir up trouble.
Former House Speaker Newt Gingrich told “Fox News Sunday” that President Obama should withdraw her nomination because of that decision – calling her anti-military at a time when America is fighting two wars. But Sen. Scott Brown (R) of Massachusetts has said her explanation satisfied him.
If Kagan keeps her composure, there appear to be no major stumblingblocks.
That said, senators of both sides will clearly want some guide of how she will act as a justice. Without a record to scrutinize, liberals as well as conservatives will want an indication of how she might interpret law on the litmus issues, such as abortion.
Some of those questions could be answered in documents in possession of the Bill Clinton presidential library. Kagan was an adviser to the Clinton administration from 1995 to 1999, and the 160,000 pieces of paper held by the library could show how she sought to influence the Clinton administration and Congress on a range of topics.
The Obama administration has asked the Clinton library to expedite the process of releasing the documents, which was expected to take place this summer.
Short of any blockbusters in the documents, even some Republicans see no impediment to Kagan becoming a Supreme Court justice. The only means by which the Republicans could block her approval is through a filibuster.