Litigation

Kagan Hearings: Political Battles Behind the Drama

By Peter Hardin

Politics, of course, is the defining backdrop for the confirmation hearings on Supreme Court nominee Elena Kagan, which begin today.  And more than one political struggle will unfold.

According to a New York Times article, the central drama may actually feature President Obama and Chief Justice John Roberts Jr.:

“With an eye on the midterm elections, Democrats will use Ms. Kagan?s hearings, which begin Monday, to put the Roberts court on trial by painting it as beholden to corporate America.

“Republicans will put Mr. Obama on trial over what they view as his Big Government agenda, and will raise questions about whether Ms. Kagan, his solicitor general and former dean of Harvard Law School, is independent enough to keep that agenda in check.”

The hearings may boil down to a fight over standards for judging defined by Obama and Roberts.

Ed Whelan, president of the Ethics and Public Policy Center called it ?the battle between the empathy standard and the umpire analogy.? Roberts stated at his own hearing,  ?It?s my job to call balls and strikes, not to pitch or bat.? But Obama, in nominating Kagan, said she  understands the law ?as it affects the lives of ordinary people.?

A Washington Post article portrayed Republicans as “struggling to find a compelling line of attack to take against Kagan,” given skillful political handling by the White House, a deluge of other major events and a nominee who is not so controversial and who has not served as a judge.

But according to analysis by Jan Crawford of CBS News, what Democrats once saw as a “slam-dunk” confirmation process may not turn out that way, with Obama weaker in public opinion polls, mid-term elections looming and documents showing “predictably liberal positions” taken by Kagan over the years. “Republicans are poised for a fight,” Crawford wrote.

“For Congress, it’s an election year, and the hearing provides Democrats and Republicans a platform to make their respective campaign arguments,” the Los Angeles Times reported, predicting she will be asked about campaign finance reform and the court’s Citizens United decision, gun control and the constitutionality of the new healthcare overhaul law.

Given the “vacuum” of information about how Kagan would approach the law, a Washington Post editorial called for “a candid and substantive discussion” that is also carefully limited:

“[I]t should be possible to engage in a conversation about the processes employed by judges without inappropriately boxing Ms. Kagan into a corner or improperly seeking her commitment on a future vote. A discussion of this type would provide a valuable and public test of Ms. Kagan’s knowledge of the law, her appreciation or displeasure with different theories, and her skill in communicating clearly and in layman’s terms.”

An editorial in the New York Times said she comes to the hearings as “one of the most enigmatic nominees for the Supreme Court in recent memory,” and it urged probing over “the contradictions in the thinking she has expressed in public [that] raise as many questions as her silence.

Columnist George Will posed a series of questions for Kagan. Commentator E.J. Dionne wrote in the Washington Post that “Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging.”

To find out more about Kagan and the nomination process, check out Gavel Grab or Justice at Stake?s ?Replacing Justice Stevens? page.

Full post as published by The Gavel on June 28, 2010 (boomark / email).