Kagan Supreme Court Confirmation Hearings to Begin Monday

June 27, 2010 -- Solicitor General Elena Kagan, the woman President Obama has chosen to be the next Supreme Court justice, long ago laid down a marker for Senate confirmation hearings.

They have become a "hollow charade," a "ritual dance," she wrote 15 years ago, complaining that such hearings no longer offered serious discussion of the Constitution. The public should learn something significant about a Supreme Court nominee, Kagan asserted, noting that the person is headed for a lifetime "seat of power and a public trust."

As her own hearings begin Monday, the challenge for Kagan — a Manhattan native and former dean of Harvard Law School who has strategically climbed the legal ladder — will be to follow that ideal without sparking new criticism and derailing her nomination.

The stakes are high all around — for Kagan, the Senate Judiciary Committee and the American people. Kagan's hearings come at a time of change at the court. The conservative majority under Chief Justice John Roberts has moved the law to the right, and the justice who is retiring, John Paul Stevens, 90, has been the liberal leader trying to counter the trend. As Kagan's hearings begin, the court will be in its final week of its annual term, ruling in the last of its most momentous cases.

On the political scene, a series of developments have thrust questions of government power to the forefront, from Arizona's anti-illegal immigrant law, to the "Tea Party" movement's message of less federal regulation, to President Obama's recent demand that BP establish a compensation fund for the Gulf of Mexico oil disaster.

"We are at a moment in our culture in which ordinary people are very engaged in the idea of the Constitution," says University of Baltimore law professor Garrett Epps. "People are very interested in these questions of government power."

Yet even with high constitutional stakes, televised confirmation hearings often lapse into political theater. The Kagan sessions come against the backdrop of an increasingly polarized Senate and the midterm elections in November.

"The flashpoints are going to be driven less by her record than by what there's political mileage to talk about," says Santa Clara Law School professor Bradley Joondeph, a former law clerk to now-retired justice Sandra Day O'Connor.

One topic likely to dominate the hearings: Kagan's handling of military recruiting during her tenure as dean at Harvard Law School. She was among several law school leaders nationwide who believed the military should not have campus recruiting privileges because of its "don't ask, don't tell" policy that preserved a ban against gay men and lesbians.

Republicans such as the Senate Judiciary Committee's ranking member, Jeff Sessions of Alabama, have criticized Kagan's opposition to the policy and Harvard's temporary restrictions on military recruiters.

If confirmed, Kagan would be the third woman on the court and only the fourth woman in its 221-year history. She also would be the first appointee in nearly 40 years who had not been a judge.