- The Washington Times - Tuesday, May 11, 2010

The fate of Solicitor General Elena Kagan’s nomination to the Supreme Court depends on how she defends her decision to restrict military recruiters at Harvard Law School and whether she’s prepared to answer the kinds of questions she declined to answer the last time she came before the Senate.

Lawmakers and analysts alike said that Ms. Kagan, whom President Obama nominated Monday to fill the seat of retiring Justice John Paul Stevens, will have a higher bar to cross this time than she did last year, when she won confirmation to be solicitor general on a 61-31 vote. All 31 “no” votes were cast by Republicans, many of whom said she stonewalled legitimate questions about how she would handle cases.

Seeking insight into her judicial philosophy and how she approaches complex legal questions of executive power, senators will demand this time to see documents from her tenure in the Clinton administration, where she served first in the counsel’s office and later as an adviser for domestic policy.

TWT RELATED STORY: Kagan gets Obama nod as pick for high court

Writing at ScotusBlog, Tom Goldstein, a lawyer who specializes in Supreme Court cases, said the Obama administration likely has reviewed all of the documents from the Clinton years and “the choice of Ms. Kagan means that the White House is convinced that smoking guns will not emerge.”

But Sen. Jeff Sessions of Alabama, who as ranking Republican on the SenateJudiciary Committee will lead the GOP’s scrutiny of Ms. Kagan, will ensure the topic is well-trodden.

“She will need to produce all documents that are properly producible,” Mr. Sessions said.

Mr. Sessions said some documents are out of bounds under attorney-client privilege but that anything else will have to be produced in order for Ms. Kagan to win the lifetime appointment of a justice.

Her documents from the Clinton administration are likely to be similar to the thousands of pages of memos written by Chief Justice John G. Roberts Jr. during his time in the Reagan White House counsel’s office, which provided limited insight into the legal reasoning of an up-and-coming lawyer, along with a few tidbits about his thoughts on executive privilege and other major debates of the day.

In addition to documents, Ms. Kagan will face close questioning over her decision as dean of Harvard Law School to prohibit the military from using the school’s career office to try to recruit for the armed forces. Her stance was rejected by a unanimous Supreme Court, which ruled that the federal government could withhold funding for schools that failed to allow recruiters access.

On Monday, Ms. Kagan’s allies sought to explain her stance.

The White House said recruiters still had access to students through the veterans office during her tenure at Harvard, and pointed to an appeals court that upheld her position, even though it was resoundingly rejected later by the Supreme Court.

Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said that even when recruiters were barred from the career office, they likely could sign up students at other places.

“Heck, when my youngest son joined the Marine Corps, he found that he could walk the three or four blocks from the campus to go down to the recruiting station and sign up,” Mr. Leahy said.

He predicted that Ms. Kagan will be confirmed and in place before the Supreme Court begins its next session in October.

Story Continues →