Courting Debate: It’s Trailblazer vs. Rubber Stamp in Battle Over Kagan

May 11, 2010 8:08am

By Rick Klein Who’s the biggest draw in Washington right now – BP executives, Hamid Karzai, or Elena Kagan? The very fact that something could eclipse a Supreme Court nomination, 24 hours in, tells you what you need to know about the early maneuvering. But that’s not necessarily the final story. The White House is largely in control of the process and the narrative. Solicitor General Elena Kagan has had the smoothest of roll-outs — a choice that surprised no one, and that so far has yielded few surprises. But over on the Republican side, there’s contentment in being able to explore the Obama agenda in a judicial context, with the woman charged with defending the administration’s point of view in court. (Do trailblazers carry rubber stamps?) Add to that some angst on the left (remember that Harriet Miers was a trailblazer too…) and the GOP strategy begins to emerge, not aimed at blocking Kagan from the court, but with broader goals in mind. For a minority party facing real math challenges, and optimistic about its chances for improvement this fall, the nomination fight is less likely to be about the nominee herself than it is an extension of the broad argument about the Obama agenda. Your real context: “Kagan, if confirmed, would join the court when it is likely to be considering challenges to some of the most important initiatives of the Obama presidency, including health-care reform, financial regulation and national security. At the heart of many of those cases will be legal questions that go to the very nature and scope of government,” Karen Tumulty writes in The Washington Post. As long as it’s about markers, and not about votes: “Supreme Court nominee Elena Kagan embarks on her quest for Senate confirmation with a strong presumption of success, drawing praise from majority Democrats and nary the threat of an all-out election-year battle from Republicans,” the AP’s David Espo writes. “Initial signs Monday pointed toward a tame, perhaps even smooth, Senate confirmation process for Solicitor General Elena Kagan,” McClatchy’s David Lightman and Margaret Talev write. Making it smoother: “When lawmakers go looking for documents that reflect Kagan’s work of the last three decades, they’ll get collections that are thin by comparison to those of the judges who were under serious consideration, with little for critics to pick apart,” Tribune Co.’s David G. Savage and Christi Parsons report.  Another Harvard tale: “During her nearly six years as the first female dean of the school, Kagan earned high marks for building consensus among the faculty’s notoriously warring factions. She modernized curriculum and attracted academic stars, transforming an institution that had a stellar name but was, by many accounts, ossified and often dysfunctional,” Jonathan Saltzman and Tracy Jan write for The Boston Globe. Over on the left: “Ms. Kagan is certainly too liberal for conservatives, who quickly criticized her nomination on Monday as a radical threat. But much like every other Democratic nominee since the 1960s, she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia,” Peter Baker writes in The New York Times. Not going to help with that whole Harriet Miers thing: “As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion-rights groups,” the AP’s Jill Zeman Bleed reports. “Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk.” Defense: “Elena is clearly a legal progressive,” said Ron Klain, chief of staff to Vice President Joe Biden. E.J. Dionne Jr.: “What some of my friends on the left might see as a disadvantage — they were looking for more of a fighting liberal this time — I see as a potential advantage for Kagan, given what I see as the central task for judicial progressives now.” Vice President Joe Biden, on “Good Morning America” Tuesday: “Thank God” a non-judge can serve on the Supreme Court. “She is supremely qualified,” Biden said. “She is Main Street. Both her parents were sons and a daughter of immigrants … This is a woman who’s lived in the real world.” On her decisions regarding military recruiters at Harvard Law: “She does think, and I agree with her, that the ‘don’t ask, don’t tell’ policy is a very bad policy,” Biden said. (And on what he whispered to Kagan Monday: “It was totally appropriate.”) Countered Sen. Jeff Sessions, R-Ala.: “I believe she absolutely was wrong. … It was unthinkable to me that because somebody disagreed with President Clinton’s ‘don’t ask, don’t tell’ policy, that they should block the military from going to campus to recruit people to become JAG officers. … It’s a sore spot with me.” On her background: “Her record is very thin, there’s no doubt about that,” Sessions said on “GMA.” “This lady is not disqualified, I’m just saying that, looking at her background, it’s clearly thin. I don’t think there’s any doubt about that.” Good luck fighting… “Perfectly boring — and that’s what makes her such a bold choice,” Dana Milbank writes in his Washington Post column. “He chose brain over bio, sending to the Senate neither a compelling American story nor a liberal warrior but a superbly skilled, non-ideological builder of bridges.” “It’s the audacity of caution,” Politico’s Glenn Thrush writes. Did Obama choose himself (again)? “Ms. Kagan generally takes liberal stands when she delves into social issues, but does so cautiously and with nuances that leave some liberals less than thrilled with her nomination,” Jess Bravin, Nathan Koppel and Ashby Jones write in The Wall Street Journal.   But she’s no Sonia — and not just because she’s a Mets fan: “The argument that Kagan has a special understanding of ordinary people, however, is harder to make,” Slate’s John Dickerson writes. “She may very well have a fellow-feeling unmatched on the planet. It’s just not immediately obvious how a graduate of Princeton who taught law at the University of Chicago and Harvard and then became dean of Harvard Law School has the common touch.” David Brooks, in his New York Times column: “There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.” Which word is the real slur? Rush Limbaugh’s judgment: “Academic idealist radical. … It’s all a crock. If they had the slightest doubt of her far-left credentials she would never have been nominated.” David Axelrod, to ABC’s Jake Tapper, on Sen. Jim Inhofe’s, R-Okla., tally in the “no” column: “One would hope that senators would give more than six hours consideration to the nomination before they render a judgment.” Big picture: “A filibuster is not on the table; it’s not even close to being on the table,” conservative activist Manuel Miranda tells The Hill’s Alexander Bolton. “The real issue is, are they going to use this nomination to catalyze a set of issues to the American people?” And/but: “It’s way too early to be making a decision about the issue of whether there should be a 60-vote threshold on the nominee,” Senate Minority Leader Mitch McConnell, R-Ky., said Monday on ABC News/Washington Post’s “Top Line.” “She’s the least qualified [nominee] in terms of judicial experience in 38 years.” Huffington Post’s Sam Stein goes inside the war room: “By afternoon, the main topic of conversation for the DNC was not Kagan herself, but the Republican National Committee’s decision to attack Kagan for quoting her former boss, Thurgood Marshall, who argued years ago that the Constitution was ‘defective.’ Democrats let every reporter on their lists know that an array of publications, including the conservative National Review, found the RNC’s attack bizarre and tough to justify.” Coming up on ABC’s “This Week” Sunday: Jake Tapper has exclusive interviews with Senate Judiciary Chairman Patrick Leahy, D-Vt., and the committee’s top Republican, Sen. Jeff Sessions, R-Ala. Some real political fallout: With the Kagan nomination, Rep. Joe Sestak, D-Pa., has found himself a fresh issue, a week before his primary against Sen. Arlen Specter, D-Pa.: “I don’t think it’s a campaign point as much as it’s one of, frankly, disappointment in our senator and how he approaches his responsibilities on judicial nominees,” Sestak tells the Pittsburgh Post-Gazette’s Daniel Malloy. “We will expect him, Arlen Specter, to backtrack.” An ad — but what about a visit? “Tomorrow you’ll see a powerful television message from President Obama thanking me for the key vote on stimulus and for the key vote on health insurance and urging my re-election,” Specter told a group of Democrats Monday in Philadelphia, per The New York Times’ Adam Nagourney. Will he or won’t he? “One Democratic source expected Obama to visit Philadelphia this weekend in a last-minute push for Specter,” Roll Call’s Shira Toeplitz reports. “The White House press office did not respond to an inquiry about the potential visit, but Pennsylvania Gov. Ed Rendell (D) hinted at an upcoming intervention from Obama, Vice President Joseph Biden and Philadelphia Mayor Michael Nutter on a recent MSNBC appearance.”  “I don’t know the schedule,” Biden said Tuesday. On the Hill Tuesday: Lamar McKay, chairman of BP America, plus executives of two other companies involved in last month’s oil spill. “The blame game is in full throttle as Congress begins hearings on the massive oil spill threatening sensitive marshes and marine life along the Gulf Coast,” the AP’s H. Josef Hebert writes in previewing the hearings. “The morning hearing by the Energy and Natural Resources Committee and the afternoon session before the Environmental and Public Health Committee give lawmakers their first chance to question the executives publicly about the April 20 rig fire, attempts to stop the flow of oil and efforts to reduce the damage.” Angry lawmakers love this stuff: “It’s also clear the three companies will have another source of finger-pointing – each other,” Erika Bolstad writes in The Miami Herald. Did someone say blame? “In prepared testimony obtained by the Chronicle, the officials trade blame over what went wrong, with rig owner Transocean suggesting cement casing by Halliburton was key and Halliburton insisting BP is the ultimate responsible party,” the Houston Chronicle’s Jennifer A. Dlouhy writes. “BP America’s chairman, Lamar McKay, is expected to focus on the failure of the blowout preventer, a 450-ton piece of equipment used on oil and gas wells worldwide as a fail-safe protection against spills.” Movement, from the administration: “The Obama administration is proposing to split up an Interior Department agency that oversees offshore drilling, as part of its response to the Gulf Coast oil spill,” the AP’s Matthew Daly reports. “An administration official who asked not to be identified because the plan is not yet public said Interior Secretary Ken Salazar will urge that Congress approve splitting the Minerals Management Service in two. One agency would be charged with inspecting oil rigs, investigating oil companies and enforcing safety regulations, while the other would oversee leases for drilling and collection of billions of dollars in royalties.” Also around town: the Karzai charm offensive. “It is a far, far different visit this time around, reflecting the Obama administration’s decision to abandon the publicly tough approach it tried to use to pressure Mr. Karzai to tackle corruption and drug trafficking in his government. Administration officials concluded that the strategy had backfired, making Mr. Karzai more resentful and resistant,” Helene Cooper and Mark Landler report in The New York Times. “The new warmth is oozing all the way to the Oval Office. President Obama, in an unusual show of hospitality and presidential attention toward a visiting foreign delegation, will be host to Mr. Karzai and others in his government for almost a full day at the White House, including a lunch on Wednesday followed by a rare joint news conference.” AFP’s Shaun Tandon: “After chiding Karzai for months over alleged corruption and vote-rigging, US officials hope the four-day visit and extended face time with leaders including President Barack Obama will help forge personal bonds and a better working relationship.” Ambassador Karl Eikenberry, at a White House briefing Monday: “Karzai is the elected president of Afghanistan. Afghanistan is a close friend and ally, and of course I highly respect President Karzai in that capacity.”   ”There is a more immediate and pragmatic way to stop ObamaCare before repealing and replacing it: De-fund it,” Alex Cortes writes in a Daily Caller op-ed. Tuesday is a voting day in West Virginia and Georgia — and you know what that means: storyline time. “National conservative activists face a test of their electoral impact Tuesday in the special election for former Republican Rep. Nathan Deal’s Georgia congressional seat, where former state Rep. Tom Graves has won a host of endorsements from the right’s top organizing groups,” Politico’s Josh Kraushaar writes. “Graves is one of six Republicans on the ballot in Deal’s strongly conservative district, running with support from organizations including the Club for Growth, FreedomWorks and the Atlanta chapter of the tea party movement.” The expected run-off in that race will be held June 8. In West Virginia: “Incumbent U.S. Rep. Alan Mollohan is facing his first serious threat in more than a decade as state Sen. Michael Oliverio battles him in the 1st District Democratic primary,” per the AP. “The two have waged an expensive battle of campaign ads for weeks. Oliverio calls the incumbent corrupt, while Mollohan calls his challenger dangerously conservative.” Charting costs, on health care: “Some families could pay a price if they seize the chance offered by the new health-care law to keep children up to age 26 on their insurance policies, regulations drafted by the Obama administration show,” The Washington Post’s David S. Hilzenrath reports. “Until 2014, when health plans will be prohibited from charging higher premiums based on preexisting conditions, insurers in the individual market can take into account the young adult’s medical condition when setting the family’s premium. In addition, under certain circumstances, families could be required to pay extra to carry young adults on their policies.” Launching Tuesday:, already gathering pledges from congressional candidates: “If a majority of representatives in either chamber of Congress has pledged to de-fund ObamaCare, then they have the power to simply refuse to fund it and effectively kill most of the law until it can be repealed and replaced completely.” On Staten Island — a comeback? (Which family would he stand beside at the announcement?) “Former Rep. Vito Fossella (R-N.Y.), who opted not to seek re-election in 2008 after a DWI arrest exposed the married father of three as having a second family in Virginia, is seriously considering entering the race for his old seat,” Politico’s Maggie Haberman reports. “According to sources familiar with his thinking, in recent weeks Fossella has been weighing a run for the seat currently held by Democratic Rep. Mike McMahon, with the kickoff for ballot petitions fast approaching and the political climate unsettled nationwide.”  If you don’t have Tuesday breakfast plans, and you have $250 to spare… Invite of the day: “Please Join The National Republican Senatorial Committee For Coffee With Senator John Ensign (R-NV) Tuesday. May 11, 2010.  9:30 A.M. -10:30A.M. (breakfast will be served) National Republican Senatorial Committee… Requested Contribution: $500 PAC/$250 personal.” Tuesday night, a New York University’s Skirball Center, debate night, sponsored by Intelligence Squared US. Resolved: “Obama’s foreign policy spells America’s decline.” For the proposition: Mort Zuckerman and Dan Senor. Against the proposition: Bernard-Henri Levy and Wesley Clark. 
  The Kicker: “Complete the danged fence.” — Sen. John McCain, R-Ariz., in a campaign ad that can be seen via his new campaign Website.  “I was also going to give a graduation speech in Arizona this weekend. But with my accent, I was afraid they would try to deport me.” — Gov. Arnold Schwarzenegger, R-Calif., delivering the commencement address at Emory University in Atlanta.
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