Kagan glides past 'gotcha' republicans

Posted: Monday, July 05, 2010

ATLANTA - The top Republican on the Senate Judiciary Committee said he was "disappointed" at the end of Elena Kagan's testimony this week, fearing she would move the U.S. Supreme Court leftward.

That isn't likely, given the reliably liberal justice she would be replacing, John Paul Stevens. The only room for an ideological shift would be to the right of Stevens.

Still, the senator, Jeff Sessions of Alabama, had the right feeling in being let down, even if for the wrong reason.

Kagan emerged unbruised from the battering he and other Republicans tried to administer. They are the ones who walked away bloody.

President Barack Obama's high court nominee deflected their blows with her intelligence, an encyclopedic knowledge of the law and a well-articulated if generalized view of judging. She appeared confident and comfortable in the hot seat. She was funny.

You can be frustrated that she refused to say how she would vote on a given issue, or even acknowledge where her passions lie. But in that way she is no different from most nominees over the past 20 years.

I'm all for senators of both parties closely questioning nominees to lifetime appointment to the nation's most influential court. Who are these people? Is there anything about them that disqualifies them?

But Sessions, with his "gotcha" smile and laser focus on military recruiting at Harvard Law School, was obsessed. Seemingly intent on exposing her as an anti-military, pro-homosexual activist who put her own, weird views above the law - above even the welfare of our country in time of war - Sessions looked small when his attack failed and he kept at it.

No, she never kicked military recruiters off campus, even though university policy required would-be employers to sign anti-discrimination pledges. The Defense Department couldn't do that because of its "don't ask, don't tell" policy.

So a veterans' organization stepped in to offer the services Harvard's placement office would have otherwise given. The Defense Department recruited so successfully on campus when Kagan was dean that their numbers rose during that period, she testified.

Didn't you call don't ask, don't tell "a profound wrong, a moral injustice of the first order?" Sessions demanded, as if accusing her of selling secrets to Osama bin Laden.

Yes, she did. And for good reason. It not only hurts gay and lesbian students who want military careers, it also limits the number of good folks who go into the armed forces and are allowed to stay.

Congress has already said it wants to lift the policy. So has Defense Secretary Robert Gates.

Republican attempts to depict her as some sort of radical got downright silly. Sen. Charles Grassley, an Iowa Republican, hit hard on this crucial topic: Why didn't she require constitutional law for first-year law students, when she did require international law? Doesn't that mean she cares more about foreign law than the very foundation of American law?

Well, no. Students are better equipped to tackle that essential subject with greater depth and understanding in their second or third year, she said.

No doubt Kagan is more liberal than the Republicans who questioned her. "My political views are generally progressive," she acknowledged. She has worked for two Democratic administrations, she confessed.

Presidents get to nominate justices who think like they do, and no one was better at that than President George W. Bush. Bent on moving the court to the right, his two appointments did just that.

But any claim that Kagan might bring back the pre-Bush court, much less the notoriously liberal Warren court, is fear-mongering (or wishful thinking). The balance can't tilt left because no confirmable nominee could be as consistently liberal as Stevens has been.

And we already have reason to suspect Kagan will think differently from Stevens about the government's treatment of suspected terrorists.

The retiring justice was part of slim majorities that struck down key aspects of Bush administration policies. He authored two of the four key opinions in the area.

Kagan, on the other hand, sounds more like Sen. Lindsey Graham, a South Carolina Republican, than Stevens. She so cheerfully agreed with the senator when questioned this week that I half expected them to walk out hand in hand.

Graham congratulated her for winning an appeals court ruling as solicitor general that says detainees held in Afghanistan don't have the same rights won by Guantanamo prisoners.

But that isn't the worst of it for those who don't like the idea of forever holding people behind bars while giving them no chance to show they don't belong there.

As solicitor general involved in some of those cases, she would recuse herself if they reach the Supreme Court. Even if, once shed of her advocate's job she wanted to side with the detainees, she couldn't.

With Stevens gone and Kagan unavailable, rulings that might have gone against the government by 5-4 votes would presumably tie 4-4.

That would leave lower court rulings in force, such as the one Graham congratulated Kagan for winning.

For that reason alone, "she's a terrible choice," says John Chandler, a King & Spalding partner in Atlanta representing several Guantanamo detainees.

Republicans entered this confirmation period knowing they could have done far worse than Kagan. They knew, too, that she would likely win the seat.

They used what little material her past gave them to challenge her, hoping any smear would rub off on Obama.

Instead, it rubbed off on them.

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