Thursday round-up, part I
Yesterday Kagan met with key Senators, Judiciary Chairman Patrick Leahy, Judiciary Committee Ranking Member Jeff Sessions, Senate Majority Leader Harry Reid, and Minority Leader Mitch McConnell for thirty minutes to an hour each. Video footage of the first, public part of Kagan’s meetings with Senators Reid and McConnell is available on C-SPAN. At the meetings, reports the Associated Press (via the Los Angeles Times), Kagan “stayed quiet in public but fielded questions in private about her resume, opinions and legal philosophy.” The Senators’ statements after the private meetings can be pieced together between various news stories. David Welna of NPR quotes Sessions as saying that Kagan's policy of banning military recruiters from using campus career facilities at Harvard Law School because of the military’s “don’t ask, don’t tell” policy “indicates some of the dangers of being in the rarefied atmosphere of the academy.” According to Perry Bacon at the Washington Post, Sessions added that Kagan “indicated she felt she had the experience to do the job, and she didn’t hesitate in that answer.” Ashby Jones of the WSJ Law Blog, has Reid remarking that Kagan “has a strong belief that the Supreme Court should be a forum where the rule of law wins out and where people from every walk of life can receive a fair hearing." Alexander Bolton from The Hill also heard Reid challenge Republicans who voted for Kagan as Solicitor General to again back her for the Supreme Court seat. In their coverage of Kagan’s visits on the Hill, the Wall Street Journal‘s Nathan Koppel and Naftali Bendavid report generally that Republicans are preparing to depict Kagan as taking “aggressively liberal positions throughout her career,” and working for several “prominent liberals,” while Bolton, in another story in The Hill, asserts that “Republicans emerged [from the meetings] with few sharp criticisms of Kagan.” A more detailed account of Kagan’s time with Reid and Sessions appears in the Blog of the Legal Times.
Speaking to reporters, including Bolton from The Hill, Leahy mentioned that he will not schedule Kagan’s actual hearing before the Senate Judiciary Committee until after Kagan has completed a nominee questionnaire. The BLT reports that both Leahy and Sessions anticipate a Senate vote before the August recess. As for the outcome, Republican Senator Orrin Hatch expects Kagan will be confirmed, according to Laura Litvan at Bloomberg.
Reflecting on confirmations past, a graphic at USA Today depicts the current Justices and their confirmation votes in the Senate; the three earliest were voted onto the Court unanimously, but, since Justice Kennedy's confirmation in 1988, all have received at least a few votes in opposition. Another graphic at the Wall Street Journal shows the votes of the current Senate Judiciary Committee members on the nomination of Justice Sotomayor.
At PrawfsBlawg, Paul Horwitz recounts Democratic Senator Charles Schumer’s 2007 law review article in which he wrote that Senators during confirmations should “ask[ ] tough and specific questions and [to use] the tools at their disposal to demand answers.” In a separate post, he describes Republican Senator John Cornyn’s contrary view, expressed in a 2005 law review article explicitly in response to Schumer’s, that "judicial nominees cannot tell us how they will rule in any case that will come before them" and that “it is deeply unfair to ‘infer[ ] that a nominee will rule a certain way by virtue of the clients he or she has represented as a lawyer.'”
Some Republicans sharply object to the fact that Kagan has never been a judge. James Oliphant and Lisa Mascaro at the Los Angeles Times report that Sessions called Kagan's experience for the Supreme Court job "very thin.” In her discussion of this issue, NPR’s Nina Totenberg observes that, with nine current Justices who were formerly judges, “in historical terms, this is the first time the court has had such a uniform professional pedigree.” At Concurring Opinions, Brandon Bartels explains why he thinks judicial experience is important.
A relatively new issue rose to prominence in the nomination coverage yesterday: With Kagan, four members of the Court — and all three women — would be born-and-raised New Yorkers (see Tuesday’s New York Times article). In a Washington Post opinion piece, Kathleen Parker posits that, in part because of her birthplace, Kagan is not “in touch” with ordinary Americans. In reply, Five Thirty Eight points out that there were three New Yorkers on the Court — as there would be if Kagan on the Court — before, from 1932-1941, and that 80% of Americans live in metropolitan areas. A Los Angeles Times article by Gerlandine Baum a"”nd Tina Susman discusses how growing up in New York’s environment may actually be fitting Supreme Court training, quoting a source from New York saying, “There’s a density of wit, irony and humor here that helps women become strong.” The BLT reports that a few Senators have also expressed concern about a lack of geographical diversity on the Court.
In the Washington Post, Roberts Barnes warns commentators from reading too much into Kagan’s service as Solicitor General over the past year, since “The job of solicitor general is to be not a legal philosopher but a lawyer with a client to defend: the United States government.” Rather, her experience on that job may offer clues about “how she would fit in” among the other Justices. Meanwhile, in an op-ed at the Post, Michael Gerson reiterates the criticism that Kagan “lacks a distinct legal voice,” except that she is “favorable to strong executive authority.” Scott Lemieux at an American Prospect blog argues that, to appease the left about “unknown questions about her record,” Kagan needs to give detailed answers at her Judiciary Committee hearing. In an interview with Gail Collins for the New York Times‘ Opinionator section, David Brooks expresses concern that Kagan — or any nominee — may have had to “repress the normal expression of opinion” throughout their career in order to be considered for the Supreme Court. In the Washington Examiner, James Copland predicts that Kagan is likely to swing left once she gets on the Court, while, in a Boston Globe op-ed, Joshua Green considers the possibility that Kagan could turn out to be a committed centrist, or even on the right.