Archive for Monday, May 10, 2010

Nominee to Supreme Court no stranger to confirmation travails

May 10, 2010


— Elena Kagan knows more than most about the confirmation gauntlet that’s coming.

The former Harvard Law School dean has studied it, as a scholar. She has worked it, as a Senate staffer. She has endured its frustrations, as a stalled judicial nominee in the Clinton administration.

Most recently, the 50-year-old Kagan has prevailed in it, surviving her January 2009 confirmation hearing to serve as the Obama administration’s solicitor general. So if she sounds a tad cynical, she’s earned it.

“(Confirmation) hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,” Kagan wrote in a 1995 University of Chicago Law Review article.

But now, the never-married New York City native must seriously attend the very process whose flaws she knows so well. Conservatives will press her about opposition to on-campus military recruiting. Liberals resent her full-throated defense of a president’s wartime prerogatives similar to those claimed by former President George W. Bush.

“The left has been critical that the Obama administration hasn’t thrown everything out on national security, but I think they’ve been very balanced and thoughtful,” said Elizabeth Rindskopf Parker, former general counsel for the CIA and National Security Agency.

Rindskopf Parker, now dean of the University of the Pacific’s McGeorge School of Law, added that her fellow law school dean Kagan “has impressed everybody with her abilities.”

There’s much in Kagan’s past to suggest pressure does not faze her.

The daughter of a lawyer, Kagan graduated summa cum laude from Princeton, magna cum laude from Harvard Law School and picked up a graduate degree from Oxford.

She’s punched through several glass ceilings, as the first female dean of Harvard Law School and the first female solicitor general. The latter position is sometimes called “the tenth justice” for sway with the nine-member Supreme Court.

“Now, I suspect that the justices think of the solicitor general more as the 37th clerk,” Kagan joked during her confirmation hearing last year.

Not least, Kagan has shown a precocious ability to find well-placed mentors.

The first judge she clerked for in the mid-1980s, former Chicago congressman Abner Mikva, turned out to be a key political adviser to a young Barack Obama. The chairman of the Senate Judiciary Committee she served in the early 1990s, Joseph Biden, is now vice president. The law school professor for whom she worked was Harvard’s most famous, Laurence Tribe.

From 1995 through 1999, Kagan worked in the Clinton administration’s White House on tobacco regulation, welfare reform and other domestic policies. Ed Whelan, president of the conservative Ethics and Public Policy Center, called this White House service “a whole black box” that could yield material for skeptics to plumb.

Kagan previously helped ease confirmation of Justice Ruth Bader Ginsburg in 1993, as Biden’s special counsel to the Senate Judiciary Committee.

Of greatest moment, though, may be Kagan’s opposition to military recruiting on campus.

Kagan called the military’s “don’t ask, don’t tell” policy prohibiting homosexuals from openly serving “a moral injustice of the first order.” Pointedly, she signed a January 2004 legal brief challenging the law that cut off federal funding to schools that rejected military recruiters.


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