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Recap: “A Discussion on the Nomination of Elena Kagan to the Supreme Court”

The American Constitution Society held a panel on Tuesday afternoon entitled, “A Discussion on the Nomination of Elena Kagan to the Supreme Court.” The event was moderated by Professor Amanda Frost of the American University’s Washington College of Law, and the panelists were Rachel Brand of WilmerHale, Walter Dellinger of O’Melveny & Myers, and Thomas Wilner of Shearman & Sterling.

On preparing for hearings. Brand, who assisted the Bush administration in preparing Chief Justice Roberts and Justice Alito for their confirmation hearings, began by discussing the likely progress of Kagan’s preparation.  She explained that the White House’s goal in these sessions is to ensure that the nominee “is not surprised by anything,” that she can anticipate and effectively respond to follow-up questions, and that she is comfortable speaking and acting within the confines of formal confirmation proceedings.  To laughter, Brand added that the administration’s final and perhaps most important objective is to “beat up” and harangue the nominee to “get out all the frustration” before the actual hearings.

Issues specific to Kagan. In addition to formulating answers to questions on the hot-button issues, Brand indicated that Kagan is likely undergoing extensive preparation regarding the Solomon Amendment and Harvard’s military-recruiting policy.  In light of President Obama’s specific comments that Kagan “chose” to take on Citizens United v. FEC as her first case as Solicitor General, “despite long odds of success,” Brand added that Kagan should be prepared to address how her personal views on the case are related, if at all, to the positions she argued on behalf of the government.

On judicial experience. The panelists agreed that Kagan’s lack of judicial experience was (or should be) irrelevant.  Brand expressed her approval of the nomination of a non-judge, while Dellinger – citing her tenures as Solicitor General and as the first female Dean of Harvard Law School – described questions regarding her qualifications as “desperate and lame.”  Similarly, Wilner downplayed comparisons to Justice Souter, who was appointed by a Republican president but became a reliable vote for the Court’s liberal wing.  Her extensive work for the two previous Democratic administrations and for the liberal judges for whom she clerked, he concluded, make her ideological inclinations sufficiently clear.

On consensus building. Media reports that have profiled Kagan’s work uniting an ideologically divided faculty at HLS have led to speculation that she could be a “coalition builder” on an often fractious Court.  Dellinger opined that Kagan could be especially effective in this role because she “genuinely seeks to understand the beliefs of those that disagree with her.”   Brand qualified these predictions with the observation that the ability to find common ground between ideologically divided justices on a stage like the Supreme Court may take a few years to develop.

On her comments re: SCOTUS confirmations. Much has also been made of Kagan’s previous criticism of Supreme Court confirmation proceedings, which she described as “vapid and hollow,” and the panelists discussed how these opinions might affect her behavior at her own hearing.   Brand opined that nominees act prudently in declining to publicly discuss the hot-button issues on which they might rule as judges, and she suggested that Kagan will likely follow suit; Brand explained that future litigants in relevant cases could claim that a Justice might be compromised in her ability to deliver an impartial ruling.  By contrast, Dellinger argued that nominees should discuss their views openly.  He contrasted the comparatively minimal “democratic process” of judicial appointment with the ensuing lifetime tenure of a confirmed Justice, and he indicated that nominees should eliminate guesswork about how they might vote in the future.  Finally, Wilner asserted that a nominee’s answers matter little in the end, as increasingly partisan voting in the Senate has trumped any significance that a nominee’s answers might carry.

On the military. Finally, on the subject of Kagan’s involvement with military recruiters at Harvard, Dellinger dismissed claims that she is anti-military as “without foundation.”  Dellinger argued that Kagan never expressed anti-military sentiments and instead asserted that she simply enforced the school’s existing antidiscrimination rules; he added that the military never disputed that it was in violation.  Brand countered that Kagan’s statement that “Don’t Ask, Don’t Tell” constituted a “profound moral injustice” may shed some light on her personal views on DADT or on gay rights more generally, and Brand reiterated that Kagan will need to be well-prepared to face questions on the subject.