Senate Judiciary Republicans indicated Friday that if President Obama nominates Solicitor General Elena Kagan to replace Supreme Court Justice John Paul Stevens, he will have a fight on his hands. Multiple sources told The Daily Caller that Kagan lacks the judicial record that would enable them to have a vigorous debate about the law, and that of the three people most likely to be nominated, she is the least desirable.
“A record like hers is harder to nail down than, say, a judge who has lots of opinions,” one Republican staffer on the Senate Judiciary Committee said. “The debate is, or should be, really about the criteria.”
The two other names that most observers agree are most likely to be nominated are federal judges with long records on the bench: Diane Wood from the Seventh Circuit Court of Appeals, and Merrick B. Garland from the Court of Appeals for the District of Columbia.
Kagan, who will turn 50 later this month, has spent most of her career in academia and government. She was dean of Harvard Law School before being named to her current post as the administration’s legal representative before the Supreme Court, and also spent a few years working as counsel in the Clinton White House.
Kagan is liberal, like Wood and Garland. She supported banning military recruiters from Harvard’s campus in retaliation for the Pentagon’s “don’t ask, don’t tell” policy on gay soldiers. But she has also drawn criticism from the left during the last year for support indefinite detention of military combatants.
Some on the left consider Kagan to be conservative, relatively speaking. And Kagan received some praise Friday from conservative legal scholars.
Douglas Kmiec, a law professor at Pepperdine and former White House lawyer for Presidents Reagan and H.W. Bush who endorsed Obama in 2008 and has been nominated by the president to be ambassador to Malta, said Kagan is “not my first choice.”
But Kmiec also called her “someone who after generations gave conservatives a fair shake at Harvard, including giving considerable support to the Federalist Society and recruiting some of the best, young conservative scholars in the mix of liberal recruits.”
“This open-mindedness deserves special note because it no doubt cost here some credit with the other side and was done with no motivation other than to present a more complete and thorough appraisal of the law,” he said.
But Kagan’s lack of judicial record would deprive Republicans of the one thing they want to be able to do: focus on legal decisions as a concrete and solid example of a nominee’s core philosophy and legal theory.
Although Republicans could filibuster a nominee, now that Democrats no longer have a 60-seat super majority, only a nominee considered to be extreme would likely elicit such a response.
The White House is not likely spoiling for a politically bruising fight in an election year, especially one that would risk alienating more independent voters, who moved away from Obama in large numbers during the health-care battle.
So the president, though he is fairly certain to get his nominee confirmed, is constrained by political realities.
Republicans, who are limited by their minority status, will aim to gain from the process a platform to argue against judges that in their view go beyond rendering legal opinions and deliver rulings on the basis of politics or personal preference rather than the law.
The clearest example of disagreement between the legal philosophies of Obama, who was a constitutional law professor at the University of Chicago, and conservatives is the president’s “empathy standard.”
Obama articulated his desire that judges have “empathy” during the nomination process for Sonia Sotomayor, his first nominee to the court, who was confirmed last year. Obama again referenced this during his remarks Friday at the White House about the new court vacancy and his upcoming nomination.
The president said he will seek a jurist with “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”
“It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,” Obama said.
Even before the president spoke, the basic message from Judiciary Committee Republicans took aim at the president’s philosophy.
“Our nation deserves a Supreme Court nominee who is committed to deciding cases impartially based on the law, not on personal politics, preferences, or what’s in the nominee’s ‘heart,’” said Sen. John Cornyn, Texas Republican.
“Every president has an obligation to nominate judges who understand and are committed to their proper role in our system of government,” said Sen. Orrin Hatch, Utah Republican and former chair of the committee.
“As I have said for many years, someone who would be an activist judge, who would substitute their own views for what the law requires, is not qualified to serve on the federal bench,” he said.