Obama sets focus on centrists as GOP seeks to hold line on Elena Kagan

Senate Minority Leader Mitch McConnell (R-Ky.) urged GOP colleagues on
Tuesday to withhold support for Supreme Court nominee Elena Kagan until
the entire conference has had a chance to review her record.

President Barack Obama on Monday called Sen. Scott Brown, a Republican from liberal-leaning Massachusetts, to urge him to keep an open mind on Kagan’s nomination.

{mosads}Even before Kagan was announced as the nominee, White House Chief of Staff Rahm Emanuel had called centrist Republican Sens. Susan Collins (Maine) and Olympia Snowe (Maine) to give them the courtesy of advance notice on the nomination.

Snowe said Emanuel offered to schedule a meeting with Kagan “at any time.”

“When the president called me yesterday, he said that she’d be coming by,” Brown said. “He asked if I would keep an open mind. I said, ‘You know me by now — of course I [will].’ ”

McConnell’s positioning and Obama’s calls show the battle over Kagan is playing out along the same lines as the debate over healthcare and Wall Street legislation. Obama has set his sights on a few centrist Republicans he views as most likely to support Kagan, while McConnell is focused on holding his conference together.

“Don’t prejudge or preconfirm, that’s what we’re telling the conference,” a senior GOP aide said.

Senate GOP Whip Jon Kyl (Ariz.) said Republicans have talked about how they shouldn’t express an opinion about any nominee until all of the information about that nominee is available and has been reviewed.

Seven Republicans, including Kyl, voted for Kagan’s nomination to become solicitor general, but these lawmakers said Tuesday that a lifetime appointment to the nation’s most powerful court is a completely different matter.

Sen. Tom Coburn (R-Okla.) said his vote for Kagan last year “doesn’t mean anything.”

“This is a whole new ball of wax,” said Coburn, who called the threshold for Supreme Court nominees “the highest bar.”

Kagan will begin her charm offensive on Capitol Hill on Tuesday morning, when she is scheduled to meet with Democratic and Republican leaders.

She will sit down with Senate Majority Leader Harry Reid (D-Nev.) at 10 a.m., McConnell at 11 a.m., Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) at noon and Sen. Jeff Sessions (Ala.), the ranking Republican on Judiciary, at 12:45 p.m. She will also chat privately with Democratic Whip Dick Durbin (Ill.) at 2:30 p.m.

A White House aide and two Senate Democratic aides said they did not expect Kagan to have a chaperone or sherpa, unlike Justice Sonia Sotomayor, who was squired about Capitol Hill by Sen. Charles Schumer (D-N.Y.).

Otherwise, Democrats and Republicans have largely followed the script they used during Sotomayor’s confirmation.

Leahy said Tuesday that he would not set a date for hearings until after he discussed the matter with Sessions.

Sessions said it would be possible to confirm Kagan by the August recess, which begins Aug. 7, but he said hearings should not happen before the July recess, which ends July 12.

The timing of Kagan’s nomination could hinge on an emerging dispute between the White House and Senate Republicans over what documents will be shared with the Judiciary Committee.

Republicans warn a final confirmation vote could be delayed if Obama’s advisers hold back internal memoranda.

Republicans have asked for hundreds of pages of memos from Kagan’s service during the Clinton administration, when she served as deputy assistant to the president for domestic policy from 1997 to 1999 and as associate council to the president from 1995 to 1996.

More controversially, Sessions has asked for documents from Kagan’s tenure as Obama’s solicitor general. Documents from the solicitor general’s office traditionally have been seen as more sensitive and have been the subject of intense fights between the branches.

Democrats filibustered Miguel Estrada, a nominee to the D.C. Circuit, after former President George W. Bush refused to turn over documents from Estrada’s service as assistant to the solicitor general.

“Are they changing their minds now?” Sessions asked of Democrats on the Judiciary panel.

“I expect to see every document that’s legitimate and producible related to her public service,” said Sessions. “Certainly a good bit of solicitor general materials should be producible.”

The Clinton-era documents may also provoke a fight. Sessions said the Obama administration clashed with Republicans on the Judiciary panel when they asked for records before her confirmation hearing for the post of solicitor general.

Republicans have already begun to raise questions about Kagan’s relatively spare record of legal writings. Her few publications have focused on legally technical areas of business, administrative and First Amendment law.

Democrats have extolled Kagan as a nominee from “outside the judicial monastery” but Republicans have questioned the claim that her life experiences have lent her insight into the problems of everyday Americans.

“Her experiences are anything but that,” said Senate Republican Policy Committee Chairman John Thune (S.D.). “She’s run in circles that don’t reflect, probably, the understanding of how an ordinary American might live.”

Kagan grew up on the Upper West Side of Manhattan, attended an elite public school and went on to study at Princeton University and Oxford before graduating from Harvard Law School. After school, she worked at a top-tier law firm in Washington, taught at the University of Chicago and worked in the Clinton administration before returning to Harvard to become dean of the law school.

Republicans say the lack of an extensive record of legal writings or opinions has made it even more important that the Obama administration share internal documents.

“Really, what is her judicial philosophy?” Thune said. “That’s why I think this information during her time as a member of the president’s staff is going to be important.”

Sam Youngman contributed to this report.