At the Associated Press, Julie Hirschfeld Davis writes that Pennsylvania Senator Arlen Specter, who voted against Elena Kagan when she was confirmed as Solicitor General, recently met with Kagan; after the meeting, he indicated that he believes her to be “very forthcoming†and thinks she will “be willing to respond more openly†to questions during her upcoming confirmation hearings for the Supreme Court. According to Reuters, Specter also told reporters that Kagan agreed with him on several of his criticisms of the Court, including his belief that the Justices accept too few cases and his argument that they erred in their January Citizens United ruling.
In the New York Times, Sheryl Gay Stolberg also has coverage of Kagan’s meetings with top senators this week, writing that Senate Judiciary Committee member Jeff Sessions criticized her approach to the military’s “Don’t Ask, Don’t Tell†policy following his conversation with the nominee. Sessions also expressed concern over Kagan’s perceived lack of experience, telling reporters that he would have liked to have seen a nominee with more experience practicing law. David Lightman also covers the  Senate meetings at McClatchy, as do NPR’s David Wellna, The Hill’s Alexander Bolton, and USA Today’s Joan Biskupic, who notes that Senate Republicans seemed particularly concerned with Kagan’s lack of experience as a judge.
Following a meeting with Kagan, Maine Republican Susan Collins told reporters that she thinks a Senate filibuster of Kagan’s confirmation is unlikely, although she is withholding judgment with regard to her own vote, Politico reports. The Boston Globe’s Mark Arsenault also remarks on Kagan’s meetings with key Senators, covering their reactions as well as comments from her former co-workers, and the Christian Science Monitor reports on Senate responses as well. At PrawfsBlawg, Paul Horwitz opines on senators’ views with regard to the questioning of judicial nominees, in a response to a recent Mirror of Justice post on the subject. FoxNews reports on Senators’ responses to their meetings with Kagan as well, highlighting speculation with regard to her views on abortion. (Newsweek’s Eleanor Clift also examines the abortion issue as well, placing Kagan’s support for a 1997 partial-birth abortion ban in context.)
At Conglomerate, Erik Gerding offers his predictions for General Kagan’s confirmation hearings, speculating that she may be boxed in by the “John Yoo trap†– that is, an attempt to force her to suggest that “if she has defended in the past or would defend the constitutionality of a particular statute/administration decision as solicitor general, she must be implicitly saying she would rule the same way as judge.â€
At the National Law Journal, Karen Sloan continues the conversation over institutional diversity on the Court (if Kagan is confirmed, all nine Justices will be alumni of either Harvard or Yale Law Schools.) While some commentators have dismissed the significance of this point, Sloan remarks, others – including Harvard professor Mark Tushnet – have argued that the President should consider candidates from other law schools the next time he chooses a nominee.
David Savage offers a detailed recap of Kagan’s opposition to the military’s “Don’t Ask, Don’t Tell†policy in the Los Angeles Times. And an a Washington Post opinion piece entitled “How I Know Kagan Isn’t Anti-Military,†former OLC head Walter Dellinger recaps the details of Kagan’s “Don’t Ask, Don’t Tell†opposition during her tenure at Harvard, arguing that none of Kagan’s actions as Dean “remotely suggest[] anything but the greatest respect for the military.â€Â Brandon Bartels comments on the issue as well at Concurring Opinions.
At the Huffington Post, Andrew Sargus Klein discusses Kagan’s perceived views with regard to executive power, arguing that President Obama’s choice of a nominee who has advocated for broad presidential authority highlights the similarities between him and his predecessor.
In a two–part post at Balkinization, Jack Balkin responds to the contentions that Kagan is a “stealth nominee,†pointing out that a limited record of academic writing should not be confused with a “lack of other indicia about a candidate’s general sensibilities†and arguing that the demand for a candidate’s record often represents an attempt to undermine the nomination. Kagan’s former Harvard Law School colleague, Professor Charles Ogletree, also responds to criticisms of Kagan, vigorously defending her nomination in an essay at The Root. Ogletree addresses criticisms about Kagan’s civil rights hiring record and calls her a “devotee of issues of diversity and equal opportunity for all Americans.â€Â At the New York Times, Katharine Q. Seelye reports on Kagan’s HLS hiring record as well.
Also addressing the Kagan nomination, Dahlia Lithwick argues in an essay at Slate that, while we may still know relatively little about Kagan’s jurisprudence, President Obama’s choice of her as a nominee allows us rare insight into his own judicial philosophy. At the Volokh Conspiracy, Orin Kerr comments on the religious makeup of the Supreme Court. And at the Washington Post, Alec MacGillis points out that the White House experience Kagan would bring to the Court – from the time she spent in the Clinton Administration – is “in short supply on the bench.â€
Tony Mauro notes, in a piece at the National Law Journal, that speculation has already begun about who will replace Elena Kagan as Solicitor General if she is in fact confirmed to the Supreme Court. According to Mauro’s article, the White House’s existing short-list for the position includes Washington state Governor Christine Gregoire; Neal Katyal, the current principal deputy solicitor general; former New York solicitor general Preeta Bansal; and Akin Gump’s Patricia Millett.
Finally, in non-nomination news, the Associated Press reports that the Obama administration filed papers Wednesday in a lawsuit filed by a victim of the government’s extraordinary rendition program, who was mistakenly sent to Syria, where he claims he was tortured. Lower courts dismissed the case, and the government has urged the Court to allow that dismissal to stand.
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