- The Washington Times - Sunday, May 16, 2010

UPDATED:

WASHINGTON (AP) — Supreme Court nominee Elena Kagan is unlikely to face a GOP filibuster but should expect difficult questions from lawmakers who will decide whether she deserves the lifetime appointment despite having no judicial experience, the Senate’s second-ranking Republican said Sunday.

“The filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that,” said Sen. Jon Kyl, Arizona Republican, who is minority whip and a member of the Senate Judiciary Committee.

The committee chairman, Sen. Patrick J. Leahy, Vermont Democrat, said he hoped to have Ms. Kagan on the bench this summer, succeeding retiring Justice John Paul Stevens well ahead of the court’s new term, which begins in October.

GOP senators are placing great weight on her testimony in determining the fate of President Obama’s second nominee for the high court. At issue is her lack of a judicial paper trail.



Ms. Kagan is now solicitor general, the top government lawyer who argues the administration’s cases before the Supreme Court, and was dean of Harvard Law School. She has never been a judge.

“She has so little other record, this is going to be a big deal,” said Alabama Sen. Jeff Sessions, the committee’s top Republican. “It’s so important how she testifies.”

Republicans want to know “whether she will lay her political beliefs aside when she’s deciding cases and decide those cases strictly based upon the facts and the law of the case,” Mr. Kyl said. “That may be a little difficult in her case because she’s never had to do that before as a judge, and so it’s more difficult to know whether she is actually able to set her views aside, but that will be the primary issue.”

Mr. Kyl also said he wants answers on her thoughts about the “enemy combatant” designation used for terrorism suspects. Senate Minority Leader Mitch McConnell, Kentucky Republican, said he wants to know about Ms. Kagan’s thoughts on campaign finance and free speech.

Sen. Charles E. Schumer, New York Democrat, said Ms. Kagan’s time at Harvard, as well as a professor and Clinton White House adviser, should suffice. “She doesn’t have judicial experience, but she has a lot of experience, a lot of practical experience. She’s hardly a blank slate,” Mr. Schumer said.

Mr. Leahy said he would meet this week with Mr. Sessions to decide when to begin the hearings for Ms. Kagan. Mr. Leahy noted that Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor both were nominated in the spring and confirmed long before October. “If we could follow a schedule roughly like that, we’ll be done this summer,” he said.

Chief Justice Roberts was nominated by President George W. Bush. Justice Sotomayor was Obama’s first nominee.

Mr. Sessions and other Republicans said they planned to question Ms. Kagan about Harvard’s barring military recruiters over the military’s “don’t ask, don’t tell” policy while she was law dean.

GOP senators have said the decision, which Mr. Sessions said came about because of Ms. Kagan’s “deep personal belief” that the ban on gays serving openly in the military was wrong, casts doubt on Ms. Kagan’s fitness for the bench.

“This is no little-bitty matter,” Mr. Sessions said. “She would not let them come to the area that does the recruiting on the campus… . This is not acceptable. It was a big error.”

Former House Speaker Newt Gingrich, a Republican, called Ms. Kagan “anti-military” and urged Obama to withdraw the nomination.

That comment drew a sharp response from Sen. Dianne Feinstein, California Democrat, who batted the remarks away as “nonsense” and “Gingrich hyperbole.”

“I would hope that no one would fall for that,” said Mrs. Feinstein, a member of the Senate Judiciary Committee.

To Mr. Leahy, the complaints are “sound and fury signifying nothing.” He said conservative interest groups are trying to come up with an issue that could possibly slow down Ms. Kagan’s confirmation.

“I realize you have so many special interest groups on the far right or the far left who have points,” Mr. Leahy said. “Ignore those. We ought to make up our own mind. We should be bright enough to do it.”

Mr. Sessions said senators should tread carefully when it comes to questions about a nominee’s personal life. “I don’t believe that is a fundamental judgment call on whether a person can be a good judge or not,” he said.

What’s important, Mr. Sessions said, is whether they can “restrain their personal political views and follow the law faithfully and serve under the Constitution. That’s the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not,” he said.

Former first lady Laura Bush said Ms. Kagan’s nomination was great. “I like to have women on the Supreme Court,” Mrs. Bush said.

Her husband, former President George W. Bush, nominated White House counsel Harriet Miers to the high court. She withdrew her nomination after running into opposition from conservatives.

Mrs. Bush said she would be glad to have three women on the court, saying it would make a difference. “I just like women to be represented in all parts of American political and civic life,” she said. If confirmed, Ms. Kagan would join Justice Sotomayor and Justice Ruth Bader Ginsburg.

Mr. Sessions and Mr. Leahy appeared on ABC’s “This Week.” Mrs. Bush and Mr. Gingrich were on “Fox News Sunday.” Mrs. Feinstein and Mr. Kyl spoke on CBS’ “Face the Nation,” while Mr. Schumer and Mr. McConnell were interviewed on NBC’s “Meet the Press.”

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