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Doug Kendall

Doug Kendall

Posted: June 25, 2010 06:27 PM

What to Look For at the Kagan Confirmation Hearings

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Starting on Monday, I will again have the privilege of live blogging a Supreme Court confirmation hearing for HuffPost. The confirmation hearings for Supreme Court nominee Elena Kagan will begin at 12:30 pm ET on Monday, and I'll be signing on along with my colleague, Hannah McCrea; we'll be doing both play-by-play and color commentary in this space throughout the hearing process.

As was the case with Justice Sotomayor's nomination, at this stage, there seems to be little doubt that - absent a bombshell -Solicitor General Kagan will be confirmed to the Court. Her stellar credentials and support from a remarkable collection of prominent conservatives have so far managed to strip the proceedings of much drama in terms of the ultimate outcome. But even if that does not change over the next week ,the stakes are very high and there will be plenty to watch for as the fight over the future of the Supreme Court takes center stage, and as some Republicans on the Judiciary Committee have been in attack mode since Kagan was nominated.

Competing Narratives by Republicans and Democrats

At this point, the basic outlines of the story that will be told by each side next week seem pretty well established. Republicans have been flailing around for the past month and a half from one half-baked line of attack to another, but seem to have coalesced in the last week around the claim that Kagan is an excessively political nominee who does not have an appropriate judicial temperament to serve on the Supreme Court. This claim is pathetically weak - distilling basically to the claim that for several years when Kagan was a lawyer working in political positions in the White House for President Clinton she was a political lawyer, but it does feed into the classic conservative shtick about how conservatives do "law" and liberals do "policy."

Democrats, meanwhile, have been delighted to see the Republicans flounder about in a Kagan debate described recently by The New York Times as "sleepy - some would say non-existent." Knowing of the widespread outrage among Americans about the Supreme Court's 5-4 ruling in Citizens United v. FEC, giving corporations the right to spend unlimited funds to elect the candidates of their choice, Democrats are eager to change the subject of the hearing as much as possible from Kagan to the pro-corporate tilt of the Roberts Court and the impact of the Court's rulings on hard-working Americans. Democrats sense that this is their moment to turn the tables on judicial politics, which has been dominated by conservatives for the last several decades. The question is whether they will be successful in controlling the narrative.

How Kagan Differs From Sotomayor

The Kagan confirmation process feels similar in many ways to the confirmation process for Justice Sotomayor, which kicked off just less than a year ago. In both cases, President Obama chose a hyper-qualified woman who started the confirmation process with the presumption that she would be confirmed.

But there are some important differences as well. In one sense, Justice Sotomayor was easier to attack because she had a substantial judicial record that covered several hot-button issues, including the right to bear arms, property rights, and affirmative action. Her "wise Latina" speech was seized upon by conservatives as sort of a "smoking gun" evidence of bias. On the other hand, Sotomayor's incredible, up-from-the projects personal story and big personality galvanized popular support around her nomination.

Going into her hearings, Kagan seems both harder to attack and more politically vulnerable. No single issue or set of issues has yet to coalesce around her nomination, leaving the impression that her Republican critics have no case against her and no chance of defeating her confirmation. But polling also shows many Americans do not know much about Kagan and that her support going into the hearings is less robust than Sotomayor's. Kagan needs a strong performance in the opening portions of her hearing to reinforce the notion that confirmation is inevitable, and to ensure that doubts about her confirmation don't begin to take hold.

Will Kagan Clean Up the "Confirmation Mess?"

Which brings me to the most interesting aspect of next week's proceedings: General Kagan's testimony. This question looms large in light of an extraordinary law review article she wrote in 1995 criticizing the Senate Judiciary Committee's confirmation hearings for their air of "vacuity and farce." This article has raised hopes that Kagan will talk openly at her own hearings. Kagan cannot, and should not, discuss cases or issues likely to come before the Supreme Court. But as I explain in this article in Slate called What Kagan Should Say, written with University of Virginia Law Professor Jim Ryan, Kagan can and should talk about the Constitution itself and her views about judicial review:

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution--all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

Just for example, President Obama has repeatedly condemned the conservative "judicial activism" of the court under Chief Justice John Roberts, most notably after last winter's Citizens United v. FEC, in which the court held that corporations have the same right to spend on elections as individual Americans. Indeed, in introducing Kagan as his nominee, Obama cited Solicitor General Kagan's argument to the court in that case as a reason to support her nomination. Kagan won't be able to discuss the nuances and ramifications of the ruling--which are sure to be before the Supreme Court again--but she should find an opportunity to note that the Constitution was ratified to protect "we the people" and never mentions corporations.


Four Things to Watch For:

Last, there are four key "variables" we will be watching next week:

1. Last Day Decisions - Monday is going to be a busy day. For the first time in at least the last three decades, a Supreme Court confirmation hearing will coincide with the last day of the Supreme Court's term, when blockbuster cases always come down. The Court will issue important rulings on guns and financial regulation on Monday that could have a big effect on the Kagan hearings. Conservatives will try to use the Court's ruling in McDonald v. City of Chicago as an excuse for attacking Kagan's Second Amendment record. If the Supreme Court in the Free Enterprise Fund case strikes down parts of the Sarbanes-Oxley Act, passed by overwhelming majorities in Congress and signed into law by President Bush in 2002 in the wake of the Enron and related financial auditing scandals, progressive senators will label this ruling Citizens United Redux and use this ruling to reinforce their argument about the pro-corporate tilt of the Roberts Court

2. The Role of Thurgood Marshall - Perhaps the most interesting single item on Kagan's resume is her service as a law clerk to the legendary Supreme Court Justice Thurgood Marshall, a towering figure on the Court and in the legal community. The Republican National Committee stepped in it soon after Kagan's nomination by appearing to criticize Marshall and Kagan for noting that our original Constitution was "defective" at least to the extent it facilitated the institution of slavery. Will Republicans continue to test the stunningly unwise strategy of "guilt-by-association" with one of our nation's most important lawyers and Justices?

3. Bombshells in Documents? -- Over the last three weeks, the Clinton library has released more than 160,000 pages of documents and emails stemming from Kagan's time in the Clinton Administration, setting off a needle-in-a-haystack-type search by her critics for incriminating documents. We've been through enough of these to know they are mostly a snooze, but few, if anyone, has been able to comb through all of them, so we'll be looking to see if Senators (particularly Republicans) produce any explosive material.

4. Stars of the Democrats? -- Several senators may use this opportunity to distinguish themselves. Arlen Specter, long-time veteran of the Senate Judiciary Committee, is on his way out. Chairman Leahy has shown incredible leadership on this committee and in attempting to reshape the judiciary away from activism. Relative newcomers like Al Franken and Sheldon Whitehouse have taken the mantle of defending the Constitution and attacking the activism of the Roberts Court. Which Senator, or Senators, will prove to be a progressive champion next week?

We look forward to watching, and helping you keep score next week.

 

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