Supreme Court Nominee Elena Kagan: What Questions Can She Expect?

Article excerpt

The Senate hearings for Supreme Court nominee Elena Kagan begin Monday. Here is a primer on how a deeply partisan Senate might challenge her.

For gravitas and spectacle, few set pieces on Capitol Hill match a Senate confirmation hearing for a lifetime appointment to the US Supreme Court. But for Solicitor General Elena Kagan, who faces 19 senators and a wall of cameras on Monday, there's an even more dramatic element: timing.

Her hearing opens as the Senate is virtually locked down in partisan gridlock. Members of Congress are fixed on midterm elections that could flip control in both the House and Senate. And the current high court, which has outraged the Democratic majority with several recent rulings, is set to release its final rulings for the year, also on Monday.

Even before Monday's opening statements or the questioning - expected to run through Thursday - the political narrative around the Kagan confirmation is set. For Republicans, it's the threat of "activist judges" that promote the Obama administration's push toward big government. Democrats are turning the activist judge argument on its head, claiming that the current high court is weighted in favor of conservative activists and corporate power.

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A counterweight to conservatives?

"We saw another troubling example in the narrow 5-to-4 decision handed down earlier this week in a case called Rent-a-Center v. Jackson, in which the conservative activists in the majority once again ruled in favor of big business at the expense of hard-working Americans," said Sen. Patrick Leahy (D) of Vermont, who chairs the Senate Judiciary Committee, in a press briefing on June 23.

Just last week, the Democrat-controlled House passed a "fix" to the Supreme Court's January ruling in Citizens United v. Federal Election Commission, which struck down limits to corporate campaign spending. "The decision undermines democracy and empowers the powerful," said House Speaker Nancy Pelosi in a floor speech before the vote. Senate majority leader Harry Reid says the Senate will also take up the issue as a priority.

Political roles for Obama and Clinton

Meanwhile, Republicans are critical of Ms. Kagan's role as solicitor general. In the Citizen's United case, she argued that a movie critical of former Sen. Hillary Rodham Clinton (D) of New York to be broadcast just before the 2008 Democratic presidential primary should be banned.

In meetings with Republican senators, Kagan reportedly said that her role as solicitor general was to defend the federal statute. In response, Republican leader Mitch McConnell said he was less troubled by Kagan's defense of federal law than the argument she employed to do it.

"I understand that her office has to defend federal law. …