Republicans look to grill, not block Kagan

Senate Republicans do not expect to derail Elena Kagan’s nomination to the Supreme Court, but they plan to strongly challenge her legal and political views.

The Senate Judiciary Committee will begin a week of confirmation hearings at 12:30 p.m. Monday in the television-friendly room 216 of the Hart Office Building.

{mosads}Given Democrats’ control of 59 seats, Senate Republicans acknowledge they are not likely to defeat her on an up-or-down vote. Barring an unforeseen meltdown during the hearings, the only way to block her would be with a filibuster.

But influential GOP members of the Judiciary panel say they have not yet seen any “extraordinary circumstances” that could justify a filibuster. Extraordinary circumstances is the standard the Senate adopted in 2005 for judicial filibusters.

Sen. Jeff Sessions (R-Ala.) has declined to rule out a filibuster, but other Republicans have said that President Barack Obama has a right to appoint his preferred choice to the court.

“I want to challenge this judge, but my view of my job next week is not replace my judgment for President Obama’s; he won this election,” Sen. Lindsey Graham (R-S.C.) told reporters on Thursday. “I go into these hearings with a view that these elections do matter.”

Graham said he has not yet seen anything in Kagan’s record that would qualify as an extraordinary circumstance and call for a filibuster.

Last month, Sen. Jon Kyl (Ariz.), the second-ranking member of the GOP leadership and a member of the Judiciary Committee, said the filibuster of a Supreme Court nominee “should be relegated to extreme circumstances, and I don’t think Elena Kagan represents that.”

While Republicans don’t expect to defeat Kagan’s nomination, they do plan to argue forcefully that Obama is nominating a poor choice for the bench. The point is to give voters another reason for voting Republican in the fall.

In recent days, Republicans have zeroed in on Kagan’s work as solicitor general in Obama’s administration. They have found several decisions that could rev up voters in November.

They have questioned Kagan’s role in the administration’s attempt to invalidate a 2007 Arizona law that requires all employers in the state to verify, through a federal database, the residence status of all new employees. Some GOP strategists see immigration as a promising issue for the fall.

Democrats have rallied behind Kagan as a trailblazer and brilliant legal thinker who would bring a new perspective to the high court because she has not previously served as a judge.

“Solicitor General Kagan is no stranger to excellence,” Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) told reporters late last week.

Leahy has repeatedly noted that Kagan became the first woman to serve as dean in the 193-year history of Harvard Law School and that she was the first woman confirmed to serve as solicitor general.

Democrats have made a case for Kagan by arguing that a lack of “real-world” experience has skewed the decisions of the sitting high court. Most frequently, they point to the landmark campaign finance case, Citizens United v. Federal Election Commission, which allowed corporations and unions to spend unlimited amounts on federal elections.

Democrats blasted the decision for overturning important precedents.

“Elena Kagan is the terrific anecdote to a lack of practical, real-world understanding by too many on the court and I look forward to her hearings,” said Sen. Charles Schumer (N.Y.), the third-ranking member of the Senate Democratic leadership and a member of the Judiciary panel.

Obama’s top political adviser, David Axelrod, predicted during a conference call Friday that Kagan would receive GOP support.

“I think that there will be many Republicans who will vote for this nominee, but how many, I don’t know,” Axelrod said.

Monday will be devoted to opening statements. Kagan is expected to deliver her statement at around 3:45 p.m. and then the committee will recess for the day.

Despite growing up on Manhattan’s Upper West Side, she will be introduced by Massachusetts Sens. John Kerry (D) and Scott Brown (R), reflecting her time at Harvard.

The first round of questioning is scheduled to begin Tuesday morning. Senators are each expected to have 30 minutes to question the nominee. They will have 20 minutes to ask questions in the second round.

Lawmakers are expected to finish their questions on Wednesday or Thursday. Then the committee will hear from outside witnesses. The outside witnesses will return to the hearing on Friday if more time is needed.

Democrats have invited 10 witnesses, including Lilly Ledbetter, the plaintiff in an employment-discrimination lawsuit in which the Supreme Court handed down a 5-4 decision making it more difficult for employees to sue for pay discrimination.

Republicans have invited 14 witnesses, including four military witnesses expected to talk about Kagan’s decision to bar military recruiters from Harvard Law’s Office of Career Services.

Kagan believed the military’s “Don’t ask, don’t tell” policy, which bars gays from serving openly, violated Harvard’s non-discrimination policy.

“That’s a big issue,” said Sessions.

Sessions penned an op-ed that ran in 50 newspapers last week blasting Kagan’s restriction on military recruiting.

“In one of the most significant positions she’s held, Ms. Kagan used her authority to hinder — rather than help — the soldiers who fight and die for our freedoms,” Sessions wrote.

He said Kagan flouted a federal law known as the Solomon Amendment, which requires schools to allow military recruiters equal access, or else forfeit federal funding.

Kagan barred military recruiters from the career services office after the 3rd Circuit Court of Appeals issued an injunction against the Solomon Amendment. But the court suspended its own ruling before it could take effect and it does not have jurisdiction over Massachusetts.

Sen. Jack Reed (D-R.I.), a West Point graduate and member of the Armed Services Committee, held a conference call Friday to defend Kagan’s record of support for the military and veterans.

He was joined by Kurt White, an Iraq veteran and Harvard Law graduate, who said that Kagan, during her welcome address to incoming classes, singled out first-year students who served in the military. She also invited students who served in the military to dine with her on Veterans Day.

Sessions told The Hill that he expected senators to ask questions on Thursday and for the entire proceeding to last until Friday. He said the span could be shorter if Democrats yield back their question time after two rounds.

“We’ll see how that plays out,” he said, noting that only seven Republicans sit on the panel, compared to 12 Democrats.