Few doubt that Elena Kagan will be the next Supreme Court justice. But that’s not stopping Senate Republicans from continuing their campaign to try to derail her nomination.
From now until August, the GOP Conference will launch its latest assault on Kagan, with plans to try to tar her as a Democratic political operative who would bring to the court liberal views on abortion, gun rights, campaign finance and the military. Republicans hope that even if they can’t stop the nomination, they can build enough opposition to force a highly partisan vote.
Kagan, the current solicitor general, completed four days of confirmation hearings by the Judiciary Committee last week. And while she was able to walk away without making any serious blunders, Republicans believe the hearings provided them with some fresh ammunition to use against her. The panel is set to vote on her confirmation on July 13, sending it to the full Senate for consideration. Majority Leader Harry Reid (D-Nev.) has said he wants the vote to occur before Members adjourn for the recess on Aug. 6.
The Senate reconvenes next week after the July Fourth recess. Immediately upon their return to Washington, GOP Senators will begin the latest round of charges against Kagan. One GOP Judiciary aide gave a preview: “You’ve got a set of specific issues … and then a ribbon that runs through them, which is her political approach to the law.”
The Republicans’ goal, according to this aide, is to raise “the question of whether she will be an individual voice on the bench or will she be a rubber stamp for President Obama on the bench.”
The offensive, which largely mirrors the Republicans’ line of questioning during Kagan’s Judiciary hearings, will primarily be aimed at convincing moderate Democrats and undecided Republicans to oppose the nomination. Republicans are hoping those Senators will find aspects of her record unacceptable for a prospective high court justice — particularly her decision when she was dean of Harvard Law School to limit military recruiters’ access to the campus because of the “don’t ask, don’t tell” policy banning openly gay individuals from serving.
Kagan’s handling of the military recruiters “was a dead letter on Day One” for moderate Senators, the Judiciary aide argued.
Republicans also hope to use that issue to convince Senators that Kagan isn’t trustworthy and that she wasn’t forthcoming enough during her hearings on the subject. Republicans believe they already scored at least one victory on that front Friday when Sen. Orrin Hatch — a veteran member of the Judiciary Committee — announced he would vote “no.”
Hatch, the first committee member and just the second Republican Senator to announce his opposition, said he did not believe Kagan has the “qualifications for judicial service [including] both legal experience and, more importantly, the appropriate judicial philosophy.”
“The law must control the judge; the judge must not control the law. I have concluded that, based on evidence rather than blind faith, General Kagan regrettably does not meet this standard and that, therefore, I cannot support her appointment,” Hatch said.
Even if the Judiciary vote falls largely along party lines, Democrats continue to hope for strong bipartisan support on the Senate floor. Democrats are hoping to secure enough Republicans to confirm her with 65 to 67 votes. Justice Sonia Sotomayor, who was installed last summer, received 67 votes.
Hatch is considered somewhat of a bellwether for the rest of the veteran Republican Senators, many of whom look to him for guidance on judicial nominations and are likely to follow his lead.
The final piece of the GOP’s anti-Kagan campaign involves her résumé, one they will argue is too heavy with politics. In addition to serving under Obama, Kagan, who has never served as a judge, previously worked in the Clinton administration. She also served as a researcher in the Michael Dukakis 1988 presidential campaign.
According to a Republican Senate leadership aide, Judiciary ranking member Jeff Sessions (R-Ala.) will try to persuade Senators to oppose her by highlighting that record. Republicans will need to show Kagan’s résumé is made up of “nothing but campaigns and Democratic politics,” the aide said.
Meanwhile, the National Rifle Association gave Republicans a boost Thursday when it formally announced its opposition to her nomination and warned that it would use the Senate confirmation vote in its annual ranking of lawmakers. That decision could put added pressure on a handful of moderate Democrats — such as Sen. Ben Nelson (Neb.) — to vote “no,” particularly if Reid has enough votes to clear the nomination.
The NRA announced its position in a letter to Judiciary Chairman Patrick Leahy (D-Vt.) and Sessions. The organization argued that Kagan’s “record on the Second Amendment gives us no confidence that if confirmed to the Court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans.”