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Senators: Nominee Meetings Matter

While Solicitor General Elena Kagan’s courtesy calls on Capitol Hill this week may seem like little more than a traditional rite of passage for a Supreme Court hopeful, lawmakers said the meetings are far more than a political exercise and have been known to make or break a nomination.

Kagan, 50, began her official tour on Wednesday morning, following the protocol. She first met with Majority Leader Harry Reid (D-Nev.) and then sat down with Minority Leader Mitch McConnell (R-Ky.) and the leaders of the Judiciary Committee, Chairman Patrick Leahy (D-Vt.) and ranking member Jeff Sessions (R-Ala.). Clad in a bright-blue blazer, Kagan sat quietly next to her Senator hosts, said nothing and smiled. All the while, dozens of photographers — escorted into the room in waves — furiously snapped images.

The pomp and circumstance is almost always the same, but the result is not.

President George W. Bush’s Supreme Court nominee Harriet Miers saw her confirmation collapse after her Hill sessions, while John Roberts was able to use the private discussions to allay concerns among Democrats that he would overturn precedents and steer the court too far to the right as chief justice. Miers withdrew her nomination after her visits; Roberts went on to become chief justice.

“I think they’re always important,” Leahy said Wednesday.

Leahy said that while Senators can and do pore over a nominee’s résumé and paper trail, it is often during the one-on-one meetings that they get a feel for how he or she will act as a justice.

South Carolina Sen. Lindsey Graham — the only Republican to vote for Justice Sonia Sotomayor’s nomination in the Judiciary Committee last year — agreed.

Graham suggested that the sessions will be particularly important in Kagan’s case because — aside from her yearlong stint as solicitor general — she has not spent her career in the courtroom. In fact, that is one of the Republican leadership’s biggest criticisms of Kagan: that she lacks critical judicial experience.

[IMGCAP(1)]”That’s where the meetings become important, and that’s why the hearings are so important,” Graham said.

The private nominee-Senator meetings, which often last from 30 minutes to an hour or more, also give Members a chance to know the nominee in a private context.

“I think it gives an opportunity to really see the human being behind all the print and media hype that’s out there. I look forward to it. I think it’s helpful,” Sessions said.

Sen. Orrin Hatch (R-Utah), who also sits on Judiciary and who voted to confirm Kagan as solicitor general, said the sessions provide nominees with a private opportunity to meet committee members and provide answers to questions outside the spotlight that typically characterizes the official confirmation hearings.

“They’re helpful in the sense it gives her a chance to get around and see all the various members of the committee and answer any questions they care to ask at that time. I think it’s good for her,” Hatch said.

Kagan, a former professor and Harvard Law School dean, appeared Wednesday to use the meetings to try to tamp down at least some of the concerns Republicans have already raised about her selection. While most lawmakers declined to reveal any specifics about their sessions, Majority Whip Dick Durbin (D-Ill.) said the two discussed civil rights, the expansion of presidential authority and a controversial article Kagan penned in the 1990s ridiculing the confirmation process as political theater.

Durbin relayed part of his conversation with Kagan on Wednesday when the pair discussed her article questioning why nominees rarely provide substantive answers during the confirmation hearings: “I said, ‘Now you’re going to have to live by the Kagan standard,'” Durbin said to Kagan. “And she said, ‘Well, the world looks a little different from this vantage point.'”

Sen. Sheldon Whitehouse (D-R.I.), who sits on the Judiciary Committee, said that after the cameras cleared and he was able to talk with Sotomayor, he was convinced she would be an effective addition to the nine-member panel.

“I remember when Justice Sotomayor came in to see me. We never met. I had no idea what she’d be like. That was my first meeting with her, and my first Supreme Court nominee. We had the usual photo-op moment, and then when the cameras cleared we had the chance to just sit and talk for a while,” Whitehouse said, adding that, “it left me thinking, ‘Wow she will be fabulous in conference.’ You get a personal feeling for somebody.”

Of course, not all Senators see the meetings as a critical phase of the confirmation process. For instance, Sen. Tom Coburn (R-Okla.), a Judiciary Committee member who also voted for Kagan to become solicitor general, argued that the meetings are “half ritual and half something else.” He said he prefers to see how nominees handle themselves during the hearings, and he rarely asks them substantive questions during those early private meetings. “I don’t ask them the questions I’ll ask in their hearings because I don’t want them to get ready,” he said.

In addition to meetings with Leahy, Durbin, Sessions, Hatch, Reid and McConnell, Kagan also paid visits to Sens. Dianne Feinstein (D-Calif.) and Herb Kohl (D-Wis.), who both sit on the Judiciary Committee. She is expected to continue making the rounds with Judiciary members and other Senators throughout the week.

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