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.
That lack of judicial experience is likely to offer another target, based on early criticism from Sessions and other Republicans. Also under GOP scrutiny: Kagan's actions on behalf of the Clinton White House in the 1990s and — going back two decades — memos she wrote during her one-year stint as a law clerk to Justice Thurgood Marshall, a champion of liberal ideals.
Kagan separated herself from some of those memos when she testified before senators in February 2009, after Obama nominated her for the post of solicitor general, the government's top lawyer before the court.
In testimony that offered senators a preview of her forceful but self-deprecating style, Kagan said, "You know, I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views. ... And he was asking us, in the context of those (cases), to channel him."
Pressing the Nominee
The 19-member Senate Judiciary Committee that will vet Kagan is led by Sen. Patrick Leahy, D-Vt., who also presided last summer when Obama chose Sonia Sotomayor to replace retiring Justice David Souter.
Leahy has praised Obama's choice of Kagan, including for offering the nation, if she is confirmed, "a new high watermark of three women serving as justices" among the nine.
Leahy has acknowledged how tough it is to elicit substantive answers from nominees and said his experience with nominees, dating to his vote for Stevens in 1975, is that they have been less forthcoming over the years.
Invoking Kagan's earlier scathing comments in a University of Chicago law review about the confirmation process, Sen. Chuck Grassley, an Iowa Republican, has said he will press Kagan to be "as forthcoming as she argued ... nominees should be." Grassley said he was getting calls from people in Iowa "both for and against her."
One of Kagan's most unequivocal defenders has been committee member Sen. Amy Klobuchar, D-Minn. She recently reminded senators of the solicitor general's arguments in defense of a campaign finance regulation intended to restrict the influence of corporations in political elections. The justices rejected the regulation in the 5-4 case of Citizens United v. Federal Election Commission, a decision that Obama immediately attacked in his State of the Union Address in January.
In the ruling that continues to reverberate legally and politically, the court majority said corporations and labor unions have a First Amendment right to use general treasury funds to support candidates.
"It was Elena Kagan who was willing to stand there as solicitor general and basically say corporations aren't people; people are people," Klobuchar said on the Senate floor last week.
Among Republicans, Sessions has been toughest in early criticism of Kagan, calling her a liberal who would bring the "president's agenda" to the high court. He also has provided the strongest critique of her actions in the military recruiting controversy.
Kagan restricted the U.S. military's recruiting at Harvard after a U.S. appeals court in 2004 struck down a federal ban on funds to universities that denied recruiters access because of the military's policy against openly gay servicemembers. Yet, while she kept the military out of the office of career services — as longstanding Harvard policy required for discriminatory employers — she allowed military recruiters to use other campus space.
When the constitutionality of the federal funding ban was on appeal to the Supreme Court in 2005, Kagan joined other law school professors in urging the justices not to revive it. The Supreme Court instead upheld the law, unanimously.
"She kicked the military out of the campus recruitment office as our troops at that very moment risked their lives in two wars overseas," Sessions said.
A Deliberate Rise
Kagan, 50, has been on a path to this moment for much of her adult life. In her senior year at Hunter College High School, she posed for one yearbook picture in a judge's black robe and holding a gavel. She graduated from Princeton University and Harvard.
She was a law clerk to U.S. Appeals Court Judge Abner Mikva on the District of Columbia Circuit, and in the 1987-88 term, to Supreme Court Justice Marshall.
She joined the Clinton administration in 1995, working as an associate White House counsel, then rising to deputy assistant to the president for domestic policy, then deputy director of the Domestic Policy Council.
Kagan's sterling resume, along with the documents released from the Clinton archive at the Judiciary Committee's request, show her to be a focused striver adept at maneuvering in a political environment. Much of her work involved weighing the legislative and political consequences of administration positions on topics from abortion rights to the Whitewater scandal that eventually led to Clinton's impeachment in the House of Representatives and acquittal in the Senate in 1999.
She helped draft letters for Clinton to send abortion opponents explaining his veto of a ban on an abortion method critics called "partial birth." Kagan had agreed with the decision to veto the bill, which did not include an exception for when the procedure might protect the woman's health.
Documents from the Clinton archives do not offer a full picture of Kagan's abortion-rights views.
During the Clinton years, Kagan worked to advance her career. After just a year with the administration and at age 36, she sought the top job in the Department of Justice's prestigious Office of Legal Counsel, which provides the president advice on constitutional issues. After an interview with the deputy White House chief of staff, she wrote a note reminding him that she had worked with then-Senate Judiciary Committee chairman Joe Biden on the 1993 confirmation hearings for Justice Ruth Bader Ginsburg. She added that Biden "strongly supports my selection" for the job. Yet that post went to someone else.
It was the Ginsburg hearings in the Senate, along with the confirmation hearings for Justice Stephen Breyer in 1994, that prompted Kagan to write in 1995 that members of the Senate Judiciary Committee "engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner."
In 1999 Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, which has been a stepping-stone for many justices, including Ginsburg and Antonin Scalia.
Her nomination stalled in the election year of 2000, and she never received a Senate vote.
Kagan in 1999 took a teaching position at Harvard Law School. In 2003, she became dean, the first woman named to the post. She gained a reputation as a leader who recruited conservative professors, including former Bush administration lawyer Jack Goldsmith, to the liberal-dominated campus.
When she testified before the Senate Judiciary Committee in 2009 for the solicitor general job, she told senators she had brought "a little bit of family from Cambridge" with her. Among the professors who accompanied Kagan, who never married and has no children, were Goldsmith and former Reagan administration solicitor general Charles Fried.
Kagan's two brothers, Marc and Irving, also appeared at the hearing. Her parents had died earlier and, as she would do when Obama selected her in May for the Supreme Court, Kagan saluted them — Robert, a lawyer, and Gloria, a teacher. "My parents wanted me to succeed in my chosen profession," she said. "More than that, both drilled into me the importance of service and character and integrity."
At those hearings, Oklahoma Republican Sen. Tom Coburn criticized Kagan's lack of experience arguing before any court, let alone the Supreme Court, where the solicitor general appears.
"I'm very confident that I'm up to this part of the job," Kagan responded, "as I am to all the many other parts of the job."
Utah Republican Sen. Orrin Hatch asked about her assertion that nominees should be more candid, yet he offered her a way out of by observing that would-be justices should not reveal the "direction they would take the court" or their votes.
"You know, I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated," Kagan said.
Then, seizing on Hatch's worries about a nominee being asked about potential votes, she concluded, "But I think that you're exactly right, that this has to be a balance. The Senate has to get the information that it needs but, as well, the nominee ... has to be protective of certain kinds of interests."