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Politics & Government

Kagan treads carefully ahead of her turn in Senate spotlight

Michael Doyle and David Lightman - McClatchy Newspapers

June 25, 2010 03:29 PM

WASHINGTON — Supreme Court nominee Elena Kagan has seemingly spent her life preparing for the center stage she's about to take.

The Princeton and Harvard Law School graduate's academic resume is picture perfect. Her political mentors have been invariably well placed. And in the seven weeks of serious scrutiny that have followed her nomination by President Barack Obama, no serious impediment has arisen to deny her confirmation. Her hearings begin Monday.

"So far, this isn't as controversial as some nominees," noted Republican Sen. Richard Lugar of Indiana. "She's very careful."

Put another way, the buzz over Kagan's nomination on Capitol Hill is more like a murmur. There's debate, but it feels muted. And the Obama administration has no problem with that. Though the administration starts with a built-in confirmation advantage, as the Democrats control 59 Senate seats, White House officials prefer not to rouse any sleeping lions.

"She barely gets the pulse racing on either side," said Andrew Taylor, the chairman of the political science department at North Carolina State University.

A June 3-6 ABC News-Washington Post survey found that 58 percent of those surveyed said Kagan should be confirmed, while 24 percent said she shouldn't. An equally telling poll released June 21 by the Pew Research Center and National Journal found 42 percent of those surveyed were indifferent or didn't know enough about Kagan to say.

The public will learn more during the televised Senate Judiciary Committee hearing that starts Monday afternoon with opening statements, and picks up steam Tuesday with Kagan's appearance.

During the two or two-and-a-half days of testifying, Kagan will try to play it safe and avoid making any unforced errors. Certain practices are commonplace for all court nominees, including "murder board" sessions in which attorneys role-play the part of inquisitive senators.

"She's going to be in a position to talk knowledgeably and in depth," White House Counsel Bob Bauer said Friday. "Any questions will be laid to rest."

The script outlines are already clear.

Republicans will press Kagan on military recruiting, asking over and over again about her decision to restrict it at Harvard Law School because of the Pentagon's policy that bans gays from serving openly. In an October 2003 e-mail to Harvard students and faculty, Kagan characterized this policy as a "profound wrong" and a "moral injustice of the first order."

Republicans also will hammer away at her relative lack of courtroom experience, and will seize on selected statements uncovered in the 160,000 pages of documents and e-mails produced by the National Archives.

"Throughout her career, she has demonstrated a willingness to make legal decisions based not on the law but instead on her very liberal politics," declared Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee.

Democrats, in turn, will cite Kagan's highest possible "well-qualified" rating from the American Bar Association and the bipartisan support she has received from the past eight solicitors general. Kagan's own answers will likely tend toward polished generalities, amid the kind of predictable stagecraft that Kagan herself has observed.

"The confirmation process," Kagan warned in a 1995 University of Chicago Law Review article that Republicans are going to cite repeatedly, "takes on an air of vacuity of farce."

Kagan, a New York native and the daughter of a Yale Law School graduate, grew up in a politically attuned family. Her first noted political involvement was during the 1988 presidential campaign Michael Dukakis. Following law school, she clerked for Thurgood Marshall, the first African-American Supreme Court justice and someone she describes as one of her heroes.

"Where I grew up, on Manhattan's Upper West Side, no one ever admitted to voting Republican," Kagan wrote in a November 1980 Daily Princetonian story.

Fifteen years later, Kagan would be working in the Clinton White House, first as associate counsel and eventually as deputy director of the White House Domestic Policy Council. Though she served during the long investigation that led to President Bill Clinton's impeachment, Kagan's focus was on policy issues such as tobacco litigation and welfare reform.

"She didn't get distracted," recalled John Podesta, Clinton's former chief of staff. "She just kept working hard."

If confirmed, Kagan, 50, would be the court's youngest member. Chief Justice John Roberts Jr., the next youngest, is 55. The retiring justice she'd replace, John Paul Stevens, turned 90 in April.

Kagan would be the only member of the current court without prior bench experience. She's never worked as a prosecutor and has minimal hands-on pro bono experience. She logged less than three years of private practice with the well-connected firm Williams & Connolly before joining the University of Chicago Law School faculty.

Even some neutral observers say Kagan's lifelong immersion in academia and politics undermines Obama's previously stated intention to reach beyond the "legal monastery" for potential Supreme Court justices.

"He reached out of the monastery, and reached into the cathedral," said Richard Lazarus, a law professor at Georgetown University.

Kagan's allies, though, cast her work as the first female dean of Harvard Law School as that of a successful businesswoman. At Harvard, which Kagan once advised the Senate was "the largest and most significant law school in the nation," she oversaw an organization with 500-plus employees and a $100 million annual budget.

"She was a hugely successful dean," said Kagan's Harvard Law School successor, Martha Minow. "She was running a large, nonprofit organization very effectively."

Kagan abounds in self-confidence. In her six appearances as solicitor general before the Supreme Court, she's never seemed shaken by justices who have at times swatted away her arguments.

"I bring up a lifetime of learning and study of the law," Kagan assured the Senate Judiciary Committee last year, and "I think I bring up some of the communication skills that have made me, I'm just going to say it, a famously excellent teacher."

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