Federal Courts and Nominations

Kagan avoids drama on way to court


The fight over Kagan’s nomination has produced relatively few fireworks, judicial activists agree.

Senate floor debate on Supreme Court nominee Elena Kagan kicked off Tuesday, beginning the final chapter in what has proved to be a low-drama process well-suited to a hot Washington summer.


Conservative and liberal judicial activists generally agreed that the struggle over Kagan’s nomination has produced fewer fireworks and drawn less public attention than any nomination since President Bill Clinton tapped Stephen Breyer in 1994. Even the structure of the Senate’s final three-day debate over Kagan was indicative of a less-than-riveting process: Majority Leader Harry Reid warned colleagues to expect repeated interruptions to take up other pressing Senate business.


The ranking member of the Senate Judiciary Committee, Jeff Sessions of Alabama has tried tirelessly to get attention for GOP criticism of Kagan. But even he conceded that it has been a challenge to get the public and the Senate to focus on a low-key nominee that everyone predicted would be confirmed anyway.


“There are a lot of big issues occurring right now,” Sessions said. “We have teachers’ bailouts, we’ve got energy [legislation] and we got this confirmation, and other things keep popping up, too.”


Indeed, soon after the Kagan debate began Tuesday, Senate Minority Leader Mitch McConnell of Kentucky was on the floor — but he wasn’t talking about the Supreme Court. Instead, he slammed the Democrats’ economic agenda and talked about the bill to prevent teacher layoffs.


Later, the Republicans had their weekly lunch to discuss official business. When the GOP leaders addressed reporters afterward, no one uttered a word about Kagan. As one GOP aide put it: “No one really cares about Kagan.”


Confirmation watchers offered various explanations for the Kagan ennui.


Obama’s solicitor general lacked the twin “firsts” that Sonia Sotomayor offered, as the first Latina nominee and President Barack Obama’s first choice for the court. Kagan also lacked a pithy, controversial sound bite, like Sotomayor’s “wise Latina” remark, to galvanize critics.


And during hearings, Kagan displayed a keen sense of humor that won over many of her conservative critics while she remained largely evasive about her legal views.


“There was none of that color or drama here,” said Curt Levey of the Committee for Justice, a conservative group active in Supreme Court fights. “I don’t think she allayed many of the fears conservatives had, but she was certainly more impressive in her demeanor than Sotomayor.”


Meanwhile, if she is confirmed to replace liberal Justice John Paul Stevens, Kagan is unlikely to ideologically move the conservative-dominated court very much, if at all. Her nomination hearings also began just as news organizations were jumping on the story of the BP oil spill in the Gulf of Mexico, which dominated coverage for weeks.


“I remember thinking, early on, the oil spill is taking away from it,” Levey said.


Another player in the confirmation wars, Gary Marx of the conservative Judicial Crisis Network, said he thinks the Kagan battle has mustered less interest because Supreme Court nominations have become more routine.


President George W. Bush selected three nominees during his two terms, and Kagan is Obama’s second pick. so far.


“There has been some Supreme Court fatigue,” Marx said. “You’ve had five nominations in five years.”


One liberal activist said the White House helped ensure a low-key confirmation process by picking Kagan — a nominee without a long, detailed paper trail spelling out her beliefs.


“She hasn’t taken a clear position on that many hot-button issues,” said Doug Kendall of the liberal Constitutional Accountability Center. “In the Sotomayor case, there was about 15 years of judicial rulings and, like with Justice Alito, you could use those rulings to make a very concrete point” about how he views the law. 

At the same time, some of the political dynamics Republicans had hoped for in the process didn’t come to pass.


GOP senators wanted Pennsylvania Democratic Sen. Arlen Specter — a former Republican who voted against Kagan’s confirmation as solicitor general last year — to go toe to toe with her in the hearings and vote against her again. However, although Specter’s rematch with Kagan produced some fireworks, the departing senator decided to back Kagan.


Aside from Sessions, Republicans didn’t seem as interested in pressing Kagan as hard as they pressed Sotomayor during her confirmation.


When Sotomayor was on the hot seat, the GOP demanded that the Puerto Rican civil rights group Sotomayor worked with turn over its records. But when Republicans challenged Kagan over the limits she put on military recruiters at Harvard, senators demanded records from the Pentagon — not Harvard.


And they did not seek information from Larry Summers, the White House economic adviser who was Harvard’s president at the time.


The National Rifle Association did make a strong statement against Kagan and told senators it would take account of their votes on her nomination.


The NRA also told POLITICO in June that the group was “looking at targeted advertising” aimed at senators who could be swing votes on Kagan. But no such ads have hit the airwaves.


Instead, “We’re doing a state-specific, grass-roots activation, basically e-mail, phones, etc,” NRA spokesman Andrew Arulanandam said last week. “All options are on the table.”


Levey said his group bought some TV ads against Sotomayor in the final week of that debate but won’t be doing the same this time. “We just don’t think people are paying enough attention,” he said.


Read the original article here.


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