- 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.

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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 Senate Judiciary 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.

“She will be confirmed,” he said, adding that he wants to turn the case into an opportunity to showcase what he thinks were recent bad decisions issued by the court’s majority.

Asked about whether she will have to be more forthcoming this time, Mr. Leahy said he will allow any senators on the committee to ask whatever questions they want.

“We’ll have a thorough, complete confirmation hearing,” he said.

Ms. Kagan, who has spent her life in academia and private practice, in addition to her time in the Clinton White House, has never served as a judge. Analysts said that’s all the more reason she will have to be open about her views this time.

“With 59 Democrats, there’s lots of room for error, and you can still get confirmed, but I think there’s going to be more pressure on her, whether it’s through documents or being more forthcoming at the hearings than most nominees because she has such a thin record,” said Curt Levey, executive director of the Committee for Justice, which lobbies for court nominees who adhere to a more conservative line.

Ms. Kagan has set the stage for close scrutiny. In 1995, she wrote that confirmation hearings should do more to probe Supreme Court nominees’ views on how they would approach cases.

She backed away from that position in her 2009 hearing for solicitor general, saying that was skewed by her time as a staffer on the Senate Judiciary Committee and that she no longer agreed with what she’d written 14 years earlier.

“This has to be a balance. The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests,” she said.

Ms. Kagan’s nomination presents a particularly thorny question for Sen. Arlen Specter, who last year as ranking Republican on the Judiciary Committee opposed her nomination, arguing she had stonewalled his efforts to find out more about her philosophy.

Soon after, Mr. Specter switched parties to become a Democrat, and he now faces a tough primary battle against Rep. Joe Sestak. On Monday, Mr. Specter laid the groundwork for changing his mind to support Ms. Kagan as she seeks a higher office.

“I voted against her for solicitor general because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice,” he said.

Mr. Sestak said he expects Mr. Specter will find a way to “backtrack” and that Mr. Specter’s back-and-forth should worry Pennsylvania’s Democratic voters.

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