Special-edition round-up: Kagan nomination V

By Anna Christensen
on May 11, 2010 at 10:30 pm

This post was compiled with assistance from Adam Schlossman.

As the BLT reported today, tomorrow Elena Kagan is scheduled to visit Capitol Hill tomorrow to meet with key senators – including Judiciary Committee chairman Patrick Leahy, Jeff Sessions, and Majority Leader Harry Reid – in preparation for her upcoming confirmation hearings.  In the same vein, the President and his chief of staff, Rahm Emanuel, have already begun to reach out to moderate Republican senators to lobby for Kagan’s confirmation, reports Andy Barr of Politico.  Concurring Opinions reports on Mike Allen’s prediction (published this morning in Politico) that Kagan will receive sixty-five votes in favor of her confirmation, while Raleigh, North Carolina’s WRAL.com reports on Vice President Joe Biden’s prediction (during an appearance on CBS) that Kagan would receive “strong bipartisan support.”

Senate Republicans have already begun to plan significant challenges to General Kagan’s confirmation, writes Manu Raju at Politico.  At the Atlantic, Chris Good responds to criticism of Kagan by Michael Steele, chairman of the Republican National Committee.  He points out that her characterization of the Constitution as “defective” referred, in large part, to the provision which stipulated that a slave was considered three-fifths of a person. In an Associated Press article, David Espo compiles reactions, particularly in the Senate, to Kagan’s nomination, and Stephanie Condon predicts at CBS’s Political Hotsheet that the controversy over Kagan’s possible confirmation will play a major role in this fall’s campaign battles.

Supporters of Kagan’s nomination have predicted that she will serve as a coalition-builder if confirmed to the Court; although these assertions hold “some legitimacy,” says Darren Hutchinson of Concurring Opinions, Hutchinson warns that it remains to be seen whether she can bring Justice Kennedy over to the Court’s progressive side.  At the Huffington Post, Harvard professor Lawrence Lessig argues that President Obama’s choice, while unsatisfying to many Democrats who had hoped for a more outspokenly liberal nominee, demonstrates the commitment to the “coalition-building” necessary to create five-Justice majorities in key Supreme Court cases.

In response to criticisms that Kagan lacks judicial experience, the White House has begun to compare her resume to that of “conservative stalwart” William Rehnquist, who also lacked experience as a judge when he was confirmed to the Supreme Court, Sam Stein reports at the Huffington Post.  The “Lexington’s Notebook” blog at the Economist notes that Kagan’s lack of a “paper trail” has distressed critics on both the left and the right, but it dismisses comparisons between her and former Bush nominee Harriet Miers as “absurd.”  (At Politico, Mike Madden examines the comparison as well.)  The Atlantic’s Andrew Sullivan suggests that Kagan’s lack of a solid record reflects her strategy of “avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other.”  And at the Wall Street Journal, Jess Bravin, Nathan Koppel and Ashby Jones examine Kagan’s record, highlighting her views on presidential authority and her stance on gays in the military.

Jonathan Adler, writing for the Volokh Conspiracy, looks back at Kagan’s 1995 comments on judicial confirmation hearings and notes that her views on the appropriateness of probing questions may have changed since then.  PrawfsBlawg’s Paul Horwitz focuses on two passages from the 1995 article, which, he argues, indicate that she may see boundaries on the types of questions that should be asked of a nominee.

Joe Klein comments at Time on Kagan’s actions with regard to military recruiters while she was dean of Harvard; in his view, because the steps she took reflected the school’s policies rather than her own personal views, her actions are “distressing, but not dispositive.”  At Newsweek, Eve Conant discusses Kagan’s record with regard to LGBT rights, highlighting her opposition to the military’s “Don’t Ask, Don’t Tell” policy and her position on the existence of a constitutional right to marriage equality; Denise Lavoie also discusses Kagan’s opposition to “Don’t Ask, Don’t Tell” at the Associated Press.

Jonathan Capehart, in the Washington Post’s Post-Partisan column, recalls a dinner-party encounter with Kagan and speculates that the Solicitor General’s “uncomfortable” silence during the gathering was a reflection of her tendency to “withhold[] bits and pieces of one’s character and personality” .  And Sandy Levinson, who taught Kagan years ago at Princeton, comments on her nomination at Balkinization, praising her 2001 article on presidential administration.

Dionne Searcy and R.M. Schneiderman report on General Kagan’s childhood on Manhattan’s Upper West Side at the Wall Street Journal.  At the New York Times, Sharon Otterman writes about the prestigious Hunter College High School, which Kagan attended in the late 1970s.  And David Bernstein comments at the Volokh Conspiracy on a letter Kagan wrote to the Daily Princetonian while a senior in college, in which she lamented the outcome of the 1980 presidential elections.

Turning away from the rapidly growing body of commentary on Kagan’s time at Harvard Law School and in Washington, the Huffington Post has a piece on the years she spent in Chicago.  At the Los Angeles Times, James Oliphant moves on to Kagan’s career in the Clinton White House, and the Huffington Post points out that she urged then-President Clinton to approve a ban on late-term abortions in 1997.

USA Today’s Daily Pitch column reports on the effect that Kagan’s nomination could have on baseball – specifically, on the the future of samples collected from a number of professional baseball players as part of a purportedly anonymous drug-testing program.  Last November, Kagan asked for the reconsideration of a lower court ruling that these samples were illegally seized by government agents.  (In other baseball news, the New York Daily News’ Michael McAuliff wonders how Mets fan Kagan and Yankees fan Sonia Sotomayor could possibly coexist on the Supreme Court.)

Ilya Somin opines in a piece at Forbes that Kagan’s openness to “non-liberal views of the law” make her a more attractive choice than several of President Obama’s other finalists for the Supreme Court nomination, while Stuart Taylor, Jr. argues at the Atlantic that, by nominating General Kagan to replace Justice Stevens, President Obama may – ironically – make the Supreme Court more conservative than it has been in recent years.  Conversely, in an opinion piece at U.S. News & World Report, John Aloysius Farrell predicts that Kagan will be “a sound, predictable member of the liberal bloc on the U.S. Supreme Court.”

At the Washington Post, Ezra Klein comments on President Obama’s characterizations of Kagan – which, Klein says, seem to “echo[] countless assessments of Obama himself.”  Instead of nominating himself for a seat on the Supreme Court, as Jeffrey Rosen suggested in February, the President may have “done the next best thing: nominated someone exactly like himself.”  And the Wall Street Journal’s editorial board also compares Kagan to the President in an opinion piece.

Briefly:

• At ACSBlog, Columbus School of Law professor Amanda Cohen Leiter observes that the days following the announcement of a Supreme Court nomination represent a rare opportunity for the American public to discuss and examine the role of the judicial branch.
• MSNBC’s Rachel Maddow has solicited opinions from three Supreme Court commentators – Glenn Greenwald, Lawrence Lessig, and Dahlia Lithwick – on Kagan’s nomination, and Ezra Klein links to the video clips at the Washington Post.
• The WSJ Law Blog’s Ashby Jones recaps a speech Kagan delivered in 2007 at West Point, which has already been heralded by her supporters as an indication of her commitment to the Constitution and the law, as well as a counterpoint to criticisms that she is anti-military.
• Daniel Solove comments on the Supreme Court confirmation process more generally at Concurring Opinions, calling for term limits for Supreme Court Justices.
• An editorial at the National Review Online examines whether Republicans should use Kagan’s confirmation hearings as an opportunity to make a case for a limited conception of the federal judiciary.

We will continue to keep you updated with additional media coverage on the Kagan nomination – stay tuned.