Politics

Sen. Arlen Specter flip flops on Elena Kagan after blasting her during 2009 solicitor general hearing

Jonathan Strong Contributor

As the top Republican on the Judiciary Committee, Sen. Arlen Specter blasted Elena Kagan for refusing to answer “basic questions,” voting against her nomination for solicitor general, the government’s top lawyer.

Now, locked in a primary fight with Rep. Joe Sestak, the Pennsylvania senator is signaling he may support Kagan, saying he has an “open mind” about her.

Since Kagan’s 2009 solicitor general nomination, Specter switched his affiliation from Republican to Democrat. Even before that, he held a reputation for shifting with the political winds.

But the backbone-challenged Specter may have a tough time slithering out of his condemnation of Kagan in 2009, when he ridiculed her for declining to answer questions about her legal philosophy.

Specter’s today said that solicitor general is a “distinctly different position than that of a Supreme Court justice.” Under heat from his primary opponent for voting against Kagan, Specter is presumably trying to distinguish the two positions to suggest that, while he may of opposed Kagan for solicitor general, his criticisms of her then might not apply to her nomination to the Supreme Court.

One of the key differences between the two positions is that Supreme Court justice is a more consequential position than solicitor general, making it all the more important for candidates to be forthcoming over their views.

Learning Kagan’s views was so important, Specter argued on the floor, because solicitor general is a position almost as important as Supreme Court Justice. From that, it is a small leap to say that for a more important position, high court justice, learning a nominee’s views is even more critical.

“The solicitor general is sometimes referred to as the 10th Supreme Court justice — a pretty important position,” Specter said then, to explain why Kagan’s views were of such importance.

(Specter is not backing off his quest for Kagan’s views completely. He noted today that he “hope[s] she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.”)

Besides the issue of the “distinctly different” issues between the two positions, Specter will need to explain his journey from near mockery of Kagan’s fastidiousness (“I use the word ‘replies’ carefully because I didn’t get too many answers as to where she stood on some critical issues”) to his new, open-minded self.

Specter said he had grave concerns about Kagan’s ability to put aside her “very deeply held positions” to advocate the government’s position in court.

“Lawyers advocate more so than state their own positions. But there is a degree of concern when the views are as strongly held as Dean Kagan’s have been,” Specter said.

Specter then launched into examples of “the problem I am having with figuring out where she stands and the problem I am having with her confirmation.”

On a case regarding whether foreign policy interests would keep Holocaust survivors from receiving monetary compensation, Specter asked what Kagan’s view of the case was. “This was a pretty highly publicized case,” Specter said, “and it is pretty hard to see how an insurance company ought to be preempted or protected by foreign policy considerations.”

Kagan’s answer: Her decision would “reflect in large measure the views of the State Department as to the magnitude of the foreign policy interests involved.” Specter was not impressed: “It does not say very much. I want to know what foreign policy interests she is concerned about.”

In another instance, Kagan argued it wasn’t appropriate for her, a nominee, to answer a question about an issue pending before the office she had been nominated for.

“She says that an evaluation is not appropriate while a brief is pending from the Solicitor General supporting reversal–she is not the Solicitor General. She has not submitted the brief. She is not a party to the action. She is a nominee,” Specter said.

Ultimately, Specter said he was “constrained to vote no” and yielded the floor.

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