Research Briefing

While Republicans Have Shown They Will Be Respectful Throughout Nomination Process, They Will Also Be Forceful In Asking Elena Kagan Whether She Will Stand With American People Or With Obama Dems’ Agenda

SUPREME COURT NOMINEE ELENA KAGAN: “When The Senate Ceases To Engage Nominees In Meaningful Discussion Of Legal Issues, The Confirmation Process Takes On An Air Of Vacuity And Farce.” (Ariane de Vogue, “Elena Kagan: Confirmation Hearings 'Vapid and Hollow Charade,’” ABC News, 5/7/10)

REPUBLICANS DEMONSTRATED THROUGH SOTOMAYOR NOMINATION PROCESS

THAT THEY WILL SHOW RESTRAINT AND RESPECT FOR KAGAN …

Senate Majority Leader Harry Reid: “I Appreciate That Senate Republicans Are Committed To A Fair And Respectful Confirmation Process For Judge Sotomayor.” (Senate Harry Reid, Senate Majority Leader, Letter To Senator McConnell, 6/9/09)

• Sen. Chuck Schumer (D-NY): “I Would Like To First Thank My Republican Colleagues. I Think The Questioning Has Been Strong But Respectful.” (“Sotomayor Confirmation Hearings, Day 2,” The New York Times, 7/14/09)
•  Sen. Ben Cardin (D-MD): “I Particularly Want To Thank Chairman Leahy And Ranking Member Sessions For The Dignified Manner In Which The Committee Handled The Nomination Process Of Judge Sotomayor.” (Senator Benjamin Cardin, “Nomination Of Judge Sonia Sotomayor To Be Associate Justice Of The Supreme Court,” News Release, 8/6/09)

CBS News’ Katie Couric: “Republican Critics Were Respectful But Tough As They Zeroed In On Her Most Controversial Comment.” (CBS’ “Evening News,” 7/14/09)

CNN’s Campbell Brown: “Day Two Of Confirmation Hearings For Sonia Sotomayor… Things Have Been Pointed, But, By And Large, Pretty Civilized On Capitol Hill.” (CNN’s “Campbell Brown,” 7/14/09)

The Washington Post Says Republicans “Responded With Restraint” To Sotomayor Announcement “In Sharp Contrast To The Fractious Partisanship” Of Recent Court Nominations. “Senate Republicans responded with restraint to the announcement yesterday, and their largely muted statements stood in sharp contrast to the fractious partisanship that has defined court battles in recent decades.” (Shailagh Murray & Michael D. Shear, “First Latina Picked for Supreme Court; GOP Faces Delicate Task in Opposition,” The Washington Post, 5/27/09)

During Sotomayor Confirmation Hearings Republicans “Often Praised Her Personal History” And “Were Neither Personal Nor Aggressive.” “GOP senators told Sotomayor they want to see a respectful, dignified hearing process, and they often praised her personal history and years of experience; they remarked on the historical significance of her nomination as a Latina. Their criticisms were at times pointed, but they were neither personal nor aggressive; those who pointed to Sotomayor's quotes and decisions did so in the spirit of raising questions about her philosophy: they did not assert positively that she's too partial or definitely ascribe any certain philosophy to her.” (Chris Good, “How Key Republicans Have Performed At Sotomayor's Hearing,” The Atlantic, 7/13/09)

“Senate Republicans, Having Decided On A Remarkably Disciplined, Respectful Response To The Nomination Of Sonia Sotomayor To The Supreme Court, Have Stunned Democrats Who Practically Begged For Them To Criticize The Historic Selection Of The First Hispanic Woman To The High Court.” (A.B. Stoddard, Op-Ed, “GOP’s Catch- 22 On Sotomayor,” The Hill, 6/3/09)

BUT WILL RIGOROUSLY QUESTION KAGAN ON HER LEGAL VIEWS

Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges? “The battle over health care is poised to move swiftly from Congress back to the country as Democrats, Republicans and a battery of interest groups race to define the legislation and dig in for long-term political and legal fights.”  (Jeff Zeleny And Sheryl Gay Stolberg, “Legal and Political Fights Loom for Democrats,” The New York Times,  3/21/10)

• “Bills And Resolutions Have Been Introduced In At Least 36 State Legislatures Seeking To Limit Or Oppose Various Aspects Of The Reform Plan Through Laws Or State Constitutional Amendments.” “In addition to the pending lawsuits, bills and resolutions have been introduced in at least 36 state legislatures seeking to limit or oppose various aspects of the reform plan through laws or state constitutional amendments, according to the National Conference of State Legislatures.” (Karen Pierog, “States launch lawsuits against healthcare plan,” Reuters, 3/22/10)
• Eighteen States Have Filed Legal Challenges Against Health Care Reform. “Five more states are joining a Florida-led group of states in a lawsuit challenging President Barack Obama's overhaul of the U.S. healthcare system, Florida's attorney general said on Wednesday. The joint lawsuit led by Florida and now grouping 18 states was filed on March 23 by mostly Republican attorney generals. It claims the sweeping reform of the $2.5 trillion U.S. healthcare system, pushed through by Democrats in the Congress after months of bitter partisan fighting, violates state-government rights in the U.S. Constitution and will force massive new spending on hard-pressed state governments.” (Pascal Fletcher, “Florida Says Challenge To Healthcare Reform Widens,” Reuters, 4/7/10)

Does Kagan Still View Constitution “As Originally Drafted And Conceived” As “Defective”? “During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech.  He declared that the Constitution, as originally drafted and conceived, was ‘defective’; only over the course of 200 years had the nation ‘attain[ed] the system of constitutional government, and its respect for . . . individual freedoms and human rights, we hold as fundamental today.’ The Constitution today, the Justice continued, contains a great deal to be proud of. ‘[B]ut the credit does not belong to the Framers.  It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them. The credit, in other words, belongs to people like Justice Marshall.  As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his.’” (Elena Kagan, “For Justice Marshall,” 71 Texas Law Review 1125, 5/93)

• And Does Kagan Still Believe That The Supreme Court’s Primary Mission Is To “Show A Special Solicitude For The Despised And Disadvantaged”? “For in Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged.  It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion.  The Court existed primarily to fulfill this mission.”  (Elena Kagan, “For Justice Marshall,” 71 Texas Law Review 1125, 5/93)

Does Kagan Still Believe That Schools Should Be Allowed To Ban The Military From Recruiting On University Campuses? “Harvard law dean Elena Kagan was one of 54 Harvard law professors who signed a friend-of-the-court brief supporting the lawsuit. She also wrote an open letter to the campus describing her ‘deep distress’ over the issue, calling the ban on openly gay service members ‘a profound wrong -- a moral injustice of the first order.’” (Marcella Bombardieri, “Judges Order Pentagon To Halt Law School Recruiting Tactics,” The Boston Globe, 11/30/04)

• Supreme Court Ruled Unanimously Against Kagan, Rejecting The “Schools’ Argument That Being Forced To Allow The Recruiters On Campus Violated Their First Amendment Rights.” “All eight sitting justices who heard oral arguments in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) last December rejected the schools' argument that being forced to allow the recruiters on campus violated their First Amendment rights. "Students and faculty are free to associate to voice their disapproval of the military's message," wrote Chief Justice John Roberts. "Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association." (Jane Roh, “Supreme Court Rules Against Schools In Military Recruiting Case,” Fox News, 03/06/06)