Little opposition has emerged so far to the nomination of Elena Kagan to the U.S. Supreme Court, but it is inevitable that critics will begin to speak up before hearings begin on June 28. Activist groups are mobilizing, anticipating an opportunity to appeal for contributions and support.
The intense politics surrounding judicial nominations has become a fact of life, no matter how moderate the candidate.
Since she has never served as a judge, Kagan’s legal perspective has been difficult to pin down. In last year’s confirmation, Sonia Sotomayor’s record as a federal judge yielded some opinions, notably on affirmative action, that were widely seen as controversial.
Much of Kagan’s career has been spent as an administrator or legal adviser, and last week documents were released from her years of service in the Clinton administration.
Potential adversaries have been poring over the trove ever since ”“ 46,500 pages of notes, memos and letters, with more to come. With such a paper trail, it’s likely critics will come up with something to be shocked about.
News reports on these writings describe her outlook as pragmatic. The Washington Post reported that she advised President Clinton to veto a bill banning “partial-birth” abortion because it did not include an exception for protecting a woman’s health. But she also helped the president draft a letter to a Catholic bishop, assuring him that he did not favor the late-term abortion procedure except where health was an issue.
Among other hot-button issues, Kagan dealt with gun control, tobacco marketing and assisted suicide.
But so far she has taken the most criticism for her role as dean of Harvard Law School in limiting military recruiting on campus. Kagan’s role was to enforce Harvard’s policy, which was to ban recruiters in response to the military’s restrictions on gay service members under “don’t ask, don’t tell” regulations.
Judiciary Committee hearings later this month will no doubt include sharp criticism of Kagan based on her past record. The National Rifle Association, which has not yet taken a position on Kagan’s nomination, says it has “serious concerns.” Americans United for Life has established a “Stop Kagan” Facebook page.
Liberal organizations are poised for counter-attacks. Kagan’s record of hard work and moderation may reassure most members of the Senate Judiciary Committee, but it seems likely that partisan politics will once again be part of the confirmation process.
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