Senators draw battle lines over Elena Kagan’s Supreme Court nomination

Jon Ward Contributor
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Republican senators on Thursday laid out one of their main points of attack against Elena Kagan, President Obama’s nominee to the Supreme Court, saying she cares more about policy outcomes than the law.

And Democratic senators began to mount a defense of Kagan against one of her most questionable decisions, to bar military recruiters from a key student office at Harvard in protest over the Pentagon’s “don’t ask, don’t tell” policy.

Sen. Jeff Sessions, the ranking Republican member from Alabama on the Senate Judiciary Committee, stepped up his criticism of Kagan one day after meeting with her at the Capitol.

Sessions did so during a confirmation hearing for Goodwin Liu, a law professor from the University of California-Berkeley who has attracted strong Republican opposition.

“In Professor Liu, President Obama has chosen a law professor who has focused on policy in law for his entire career and has never been a judge or subjected himself to the discipline of real practice of law,” Sessions said.

Liu has been nominated by Obama for a spot on the 9th Circuit Court of Appeals, and was approved by the committee in a straight party line vote, with 12 Democrats voting for him and seven Republicans voting against.

During the hearing, Sessions equated Kagan with Liu. Liu, unlike Kagan, has a long paper trail that clearly marks him as a ideologically far to the left on many issues.

“In Solicitor General Kagan, the president has chosen another academic who’s focused on policy the majority of her career, including in the Clinton administration, who’s never been a judge or seriously practiced law, to sit on the highest court in the land,” Sessions said. “It is clear that the president tends to prefer academic approaches to the law over the prosaic efforts to daily follow the law as written. He prefers results-oriented judging, unfortunately.”

The White House did not respond when asked for comment.

Though reporters and activists have been scrutinizing Kagan’s writings and speeches for the last few days, little has emerged to indicate what her views are.

However, she did in 1995 express a desire for judges to be more explicit in voicing their opinions and said she did not mind being characterized as “results-oriented.”

“The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the court’s decisions,” she wrote.

“If that is too results oriented … so be it.”

Kagan has since changed her mind, saying that judges should not have to reveal their opinions under questioning from lawmakers.

Sen. Lindsey Graham, South Carolina Republican, said Liu’s written record is “very disturbing” and betrayed confusion over the differences between a lawmaker and a judge.

“In Professor Liu’s world, the Constitution places virtually no limits on the role of a judge to impose their opinion on almost every area of life,” Graham said in a statement. “This leads me to one conclusion – Professor Liu should be in elected politics, not in court as a judge.”

A Graham spokeswoman did not respond when asked if Graham believes, like Sessions, that Kagan is much the same as Liu.

Democrats, meanwhile, began to defend Kagan more strenuously against criticism over her decision to ban military recruiters from a key office on Harvard’s campus when she was dean of its law school earlier this decade.

Sen. John Kerry, Massachusetts Democrat, said during his meeting with Kagan Thursday “she affirmed to me that military recruiters were always allowed on campus, and conducted interviews right on the grounds in Cambridge.”

“As a veteran and a lawmaker who opposed the ban that many Ivy League schools instituted on military recruiting and ROTC programs, when I heard the facts from Elena Kagan I was absolutely reassured of her commitment to those in military service,” Kerry said.

The fact that Kagan barred the military from using the main recruiting office still strikes many Republicans as a troubling decision, and they plan to bring it up during her confirmation hearing.

However Sen. Scott Brown, a Massachusetts Republican, stepped on his own party’s message bit after meeting with Kagan Thursday at the Capitol.

“It was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole,” Brown said.

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