Sen. Whitehouse: Kagan Politics ‘Legitimate Topic of Inquiry,’ but not Determinative

Jun 28, 2010 3:00pm

ABC News' Rick Klein reports: Republicans are vowing to highlight the political nature of Elena Kagan’s work history – as a junior aide on the Dukakis presidential campaign in 1988, through a stint as a policy adviser in the Clinton White House and now as President Obama’s solicitor general – in the Supreme Court confirmation hearings that started today. Sen. Sheldon Whitehouse, D-R.I., a member of the Senate Judiciary Committee, said on ABC/Washington Post’s “Top Line” today that such scrutiny is appropriate – but shouldn’t provide the final word on Kagan’s qualifications for the bench.

“I think it clearly is a legitimate topic of inquiry, and I'm sure it'll be well ventilated,” Whitehouse, D-R.I., told us. “Obviously, when one serves in the White House counsel office, there are political aspects to that, and I'm sure that she has rendered decisions for her White House client that had that necessary political overtones. “The key question isn't, ‘Did she do that?’ — that's just being a good lawyer in those circumstances,” Whitehouse said. “The key question is, ‘Now that she's a nominee for the Supreme Court, will she do what Supreme Court justices should: set that aside and make her decisions based on the law and based on the Constitution?’ ” Whitehouse said Republicans will be hard-pressed to make the point that Democrats’ judicial picks are “activists.” “I'll be interesting trying to watch them make that latter point in the wake of today's Supreme Court decision, finding for the first time in the history of the country that there's an independent right to bear arms as applied to states and to municipalities that, for decades, have regulated firearms. So the activism chord is one that they’re gonna have to play with a little bit of irony to it today, I think,” he said. He cautioned his colleagues over how far to press Kagan for specific answers to questions on mattesr that may come before the court. “The one thing you have to watch for in these discussions is — if you get close to the point where it looks as if you're prepared to trade your vote for the nominee's commitment to vote a certain way in a later decision, it has now become an abuse of the committee process, and you want to avoid that,” Whitehouse said. “So broad issues about philosophy and about the institution and structure of our government? Absolutely. Pinning down to individual cases and seeking pledges and commitments? Out of bounds.” On the Afghanistan war, Whitehouse voiced frustration about the pace of progress. “There's obvious concern that the military effort is not being more rapid and successful,” he said. “There is considerable concern about President Karzai and the level of corruption in his administration. I think there is gonna be a period of adjustment as Gen. [David] Petraeus comes in and establishes his working relationships with Ambassador [Karl] Eikenberry and others. But I think we should let the administration get through that period before we go to final judgment in any of these other areas.” Whitehouse also offered fond reminiscences of Sen. Robert Byrd, D-W.Va., who died early today at the age of 92. “Reverent, I suppose, would be the best way to describe it. He had been in Congress longer than I'd been alive. He has served in the Senate for a quarter of the history of the Republic. He is the greatest proponent and embodiment of the Senate as an institution, and so he was very hard to have a normal conversation with. He was somebody who when you were speaking to, you felt you were sort of engaging with history, and not just with a colleague.” Watch the full interview with Sen. Sheldon Whitehouse HERE. For our daily “Post Politics” segment, we checked in with The Washington Post’s Chris Cillizza, who writes The Fix blog at We handicapped former Arkansas Gov. Mike Huckabee’s presidential chances, as he makes more noises about making another run in 2012. We also touched on the Kagan hearings, and the early maneuverings about Byrd’s Senate seat. Watch the discussion with Chris Cillizza HERE.

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