WASHINGTON — Senate Republicans are unlikely to filibuster Supreme Court nominee Elena Kagan, but they do plan to pepper her with tough questions about her legal positions, policies and practices during her upcoming confirmation hearings.
Sen. Jon Kyl of Arizona, the Senate's Republican whip, said Sunday that he doesn't see the GOP employing a filibuster against Kagan, who was nominated for the high court by President Barack Obama.
"The filibuster should be relegated to the extreme circumstances, and I don't think Elena Kagan represents that," said Kyl, a member of the Senate Judiciary Committee.
GOP senators will put great weight on Kagan's testimony because of her lack of a judicial paper trail. She is now solicitor general, the top government lawyer who argues the administration's cases before the Supreme Court, and was dean of Harvard Law School. But she has never been a judge.
"She has so little other record, this is going to be a big deal," said Alabama Sen. Jeff Sessions, the committee's top Republican. "It's so important how she testifies."
Sen. Chuck Schumer, D-N.Y., said Kagan's time at Harvard, as well as a professor and Clinton White House adviser, should suffice. "She doesn't have judicial experience. But she has a lot of experience, a lot of practical experience. She's hardly a blank slate," Schumer said.
The committee chairman, Sen. Patrick Leahy, D-Vt., said senators would decide this week when to begin confirmation hearings for Kagan. He hopes to have a vote this summer, succeeding retiring Justice John Paul Stevens well ahead of the new term that begins in October.
Sessions and other Republicans said they planned to question Kagan about Harvard's barring military recruiters over the military's "don't ask, don't tell" policy while she was law dean.
GOP senators have said the decision – which Sessions said came about because of Kagan's "deep personal belief" that the ban on gays serving openly in the military was wrong – casts doubt on Kagan's fitness for the bench.
"This is no little-bitty matter," Sessions said. "She would not let them come to the area that does the recruiting on the campus. ... This is not acceptable. It was a big error."
Former GOP House Speaker Newt Gingrich called Kagan "antimilitary" and urged Obama to withdraw the nomination. That drew a sharp response from Sen. Dianne Feinstein, D-Calif., who batted the remarks away as "nonsense" and "Gingrich hyperbole."
Sessions said senators should tread carefully when it comes to questions about a nominee's personal life. "I don't believe that is a fundamental judgment call on whether a person can be a good judge or not," he said.
What's important, Sessions said, is whether they can "restrain their personal political views and follow the law faithfully and serve under the Constitution? That's the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not," he said.