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Elena Kagan Confirmation Hearing: The GOP's Strategy For Defeating Obama's Supreme Court Nominee

JULIE HIRSCHFELD DAVIS   06/24/10 04:54 PM ET   AP

Elena Kagan Gop

WASHINGTON — Elena Kagan's a politics-driven liberal, her detractors say. She's a judicial activist. She treated military recruiters like second-class citizens during wartime.

That's all according to Senate Republicans and conservative activists, who are sharpening their criticism of President Barack Obama's Supreme Court nominee and revealing strategies for confronting her at Judiciary Committee hearings that begin Monday.

As the White House and congressional Democrats tout Kagan as a fair-minded, glass ceiling-shattering legal mind who can bridge the ideological chasm of today's Supreme Court, Republicans and their allies are working to discredit her and raise doubts about giving her a lifetime spot there.

It's a tall order, since there's no telling how Kagan – she has never been a judge – will behave once on the bench. The 50-year-old former Harvard Law School dean and Clinton administration aide served until recently as solicitor general arguing for the Obama administration before the Supreme Court.

The American Bar Association on Thursday have her its highest rating, calling Kagan "well qualified" for a position on the Supreme Court.

But Republicans plan to use Kagan's resume against her during the hearings, charging that she is incapable of morphing from a politically shrewd policy adviser pushing a Democratic president's agenda into an impartial justice.

"There will be a huge theme about whether the political activist part of her life and career, and her lack of legal experience, either as a judge or a lawyer – whether that will overcome the responsibility she has to be faithful to the law," said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary panel.

Sessions said Kagan's stance on military recruitment during her tenure at Harvard, which he called "troubling," would figure prominently in the debate over her fitness for the court.

Kagan briefly denied military recruiters access to the law school's career services office because of the prohibition against openly gay soldiers, which violated Harvard's policy against employers who discriminated in hiring. Instead, she said the recruiters could work only through campus military and veterans' groups to make contact and conduct interviews with interested students.

The policy was an attempt to comply with a law denying federal funding to institutions that barred military recruiters without running afoul of Harvard's nondiscrimination policy. But some military officials called it stonewalling, and she has been criticized bitterly for a decision Republicans say showed disdain for the armed forces during wartime.

Sessions hasn't said yet who he plans to call to testify against Kagan at next week's hearings, but some people close to the process say it's likely he will include a military figure who felt aggrieved by her actions at Harvard.

Sen. Orrin Hatch, R-Utah, another senior Judiciary member, said the episode is evidence that Kagan puts politics and her own personal views before the law. Thousands of pages of memos and notes from Kagan's years as a White House counsel and domestic policy aide to President Bill Clinton are fueling his argument. They're littered with advice from Kagan that's primarily driven by political considerations and policy concerns.

Hatch said it's clear from her speeches and writings that Kagan espouses "an activist philosophy" of judging, citing her past praise for her former boss Justice Thurgood Marshall and former Israeli Supreme Court President Aharon Barak.

"Ms. Kagan has endorsed and has praised others who endorse an activist judicial philosophy," Hatch said. "She appears to have accepted that judges may base their decisions on their own sense of fairness or justice, their own values of what is good and right, and their own vision of the way society ought to be."

Hatch is one of seven Republicans who voted last year to confirm Kagan as solicitor general, but he and several others have made it clear that they have different criteria for determining their vote on making her a justice.

And conservative activists are making it clear they expect Republicans to question Kagan sharply, with some insisting that they move to block a vote to confirm her – something GOP senators have so far shown little inclination to do.

"We've seen enough to give us a long list of concerns," said Curt Levey of the Committee for Justice, who gathered conservative activists outside the Supreme Court on Thursday to criticize Kagan's positions on topics ranging from gun rights to free speech and affirmative action.

Mario Diaz of Concerned Women for America called Kagan's record one "of a liberal political soldier – not an impartial jurist," and said his group was urging senators to vote "no."

Tommy Sears of the Center for Military Readiness said Kagan should be blocked from a confirmation vote based on her position on military recruitment at Harvard Law School.

Kagan's judgment in that episode "certainly calls into question what she would do with regard to other military issues and judicial deference with regard to military issues," Sears said.

Also on display at the hearings will be a partisan dispute over the role of a judge in society, with Republicans painting Kagan as a dangerous example of the liberal view that judges should apply real-world experience to their decisions. GOP senators argue instead that judges should base their rulings strictly on the letter of the Constitution, although Senate Democrats contend the conservative-dominated court has done just the opposite, twisting the law to reach its preferred conclusions on issues from workplace rights to campaign finance.

"This debate and what it says about President Obama will be part of the discussion, frankly," Sessions said.

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Filed by Michael Falcone  |