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Published: Monday, 6/28/2010

Senators sharpen their queries for Kagan as hearings open

BLADE NEWS SERVICES

WASHINGTON - Leading Republican senators Sunday questioned whether Supreme Court nominee Elena Kagan could be an impartial judge as they tried to inject some drama into her upcoming confirmation hearing.

Democrats praised Ms. Kagan's record and predicted she will be confirmed as the 112th justice and the court's fourth woman.

The Senate Judiciary Committee begins the weeklong hearing Monday. Ms. Kagan is not expected to face questions until Tuesday.

Sen. Jeff Sessions of Alabama, the top Republican on the committee, said Ms. Kagan's nomination has "real problems" that she will have to address.

"I think the first thing we need to decide is, is she committed to the rule of law even if she may not like the law? Will she as a judge subordinate herself to the Constitution and keep her political views at bay?" Mr. Sessions said.

Ms. Kagan's lack of judicial experience means more focus on her political views, Mr. Sessions said. "She's been aggressive on issue after issue from the liberal side of the political issues," he said.

Sens. John Cornyn (R., Texas) and Lindsey Graham (R., S.C.) said Ms. Kagan would be pressed to explain her role, while dean at the Harvard law school, in limiting military recruiting at the law school because of the Pentagon's policy of barring openly gay soldiers. "This policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans," Mr. Graham said.

Additionally, Ms. Kagan's record on race in the Clinton White House and at Harvard law school is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Ms. Kagan's merits to replace Justice John Paul Stevens.

The uncertainty among some on the left is particularly striking, given that she was nominated by the nation's first black president.

Decades after the height of the civil rights movement, questions involving race and ethnicity persist as a recurrent theme before the Supreme Court, and attitudes on those issues remain a significant prism through which nominees are evaluated by those on the left and the right.

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Ms. Kagan, giving her a lukewarm rating.

The group's president, Mavis Thompson, said it "had some qualms" about Ms. Kagan's statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard law school on diversifying the school along racial and ethnic lines.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings.

Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Ms. Kagan's public statements and actions and said they are uneasy.

"This is a complicated nomination," said Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. Last week it decided not to take a position yet. "There isn't a judicial record to review indicating her views on critical civil rights matters," Ms. Arnwine said. "And otherwise the civil rights record that exists is thin and mixed."

Senator Cornyn said the hearings could also be about President Obama, as "this President is trying to get somebody through who has a very sparse record and who he believes will be a reliable vote on the left wing of the United States Supreme Court."

Ms. Kagan, 50, had virtually no courtroom experience before Mr. Obama made her his top Supreme Court lawyer last year. She argued six cases at the high court stretching back to September.

She was Harvard law dean and a White House aide and lawyer in the Clinton administration, sandwiched between stints as a law professor at the University of Chicago and Harvard. She had been a Supreme Court law clerk to the late Justice Thurgood Marshall after graduating from law school.

To blunt Republican opposition, Ms. Kagan has attracted considerable support from notable conservative lawyers who served in Republican administrations, including two former solicitors general, Ted Olson and Kenneth Starr. The latter was the special prosecutor whose investigation led to President Bill Clinton's impeachment during Ms. Kagan's White House service.

Sen. Patrick Leahy (D., Vt.), chairman of the Judiciary committee, said the hearing would showcase Ms. Kagan as "a brilliant woman, a brilliant legal mind."

Sen. Dianne Feinstein (D., Calif.) called Ms. Kagan superbly qualified. "I believe the drift net has been out to find some disqualifying factor and it hasn't been found," Ms. Feinstein said.

Mr. Leahy and Ms. Feinstein agreed Ms. Kagan probably will be asked repeatedly about a 15-year-old article in which she criticized Supreme Court confirmation hearings as largely devoid of substance, and called on senators to press nominees about their views.

"She expressed her very strong view that nominees should be more forthcoming, we should be more pressing in our questions," Ms. Feinstein said. "I suspect members will hold her to this."

Mr. Leahy and Mr. Sessions appeared on CBS' Face the Nation. Ms. Feinstein and Mr. Graham were on Fox News Sunday, and Mr. Cornyn spoke on CNN's State of the Union.



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