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Kagan has presumption of court confirmation

DAVID ESPO
AP Special Correspondent
Solicitor General Elena Kagan stands with President Barack Obama and Vice President Joe Biden as she is introduced as Obama's nominee for the Supreme Court during an announcement in the East Room of the White House in Washington, Monday, May 10, 2010. (AP Photo/Susan Walsh)
ASSOCIATED PRESS | AP

WASHINGTON – Senate Majority Leader Harry Reid defended Supreme Court nominee Elena Kagan Tuesday against what is emerging as a prime Republican criticism: that she’s not qualified for the job.

Kagan “has fresh ideas. She’s been out in the real world recently. I think she’s going to be just a terrific addition to the Supreme Court,” Reid said on the Senate floor.

And he pointed out that one storied chief justice, William Rehnquist, was a GOP nominee who also came to the court without having first been a judge.



Kagan is embarking on her quest for Senate confirmation with a strong presumption of success, so far not encountering any threat of an all-out election-year battle from Republicans. Rather, her GOP critics are making clear they’ll question the 50-year-old solicitor general about her experience, her decision as dean of the Harvard Law School to ban military recruiters from campus, and her ability to rule objectively on cases involving the Obama administration.

“What record does she have to demonstrate that she has been able to put aside her strongly held political views?” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee that will hold hearings on Kagan’s nomination. “We need to make sure that she would faithfully apply the Constitution and not be a rubber stamp” for liberal policies.



Kagan is set to meet Wednesday with leaders of both parties as she begins the delicate and closely watched ritual of making “courtesy calls” to the senators whose votes she’ll need to win confirmation.

Vice President Joe Biden, in television interviews Tuesday, predicted that Kagan would be elevated with “strong, bipartisan support.”

If confirmed, Kagan would take the place of retiring Justice John Paul Stevens and, on the face of it, would not be expected to alter the ideological balance of a court that often splits 5-4 on the most contentious cases.



Even so, Obama e-mailed a video to thousands of supporters in which he said the 90-year-old Stevens has helped justices “find common ground on some of the most controversial and contentious issues the court has ever faced.” He added Kagan could “ultimately provide that same kind of leadership,” suggesting she had the legal acumen and personality necessary to knit together a majority coalition of five justices, as Stevens has done.

The president did not identify any of the cases he was referring to. But Stevens has been on the majority side in recent years in divided court decisions that ruled detainees at Guantanamo had a right to go to court to challenge their confinement, struck down Bush-era military commissions, and banned the death penalty for offenders younger than 18.

Other close cases where Stevens either wrote the opinion or assigned it as the senior justice on the prevailing side cheered environmentalists and supporters of abortion rights. One directed the Environmental Protection Agency to regulate greenhouse gas emissions from cars and trucks. Another struck down a Nebraska state law that banned a type of late-term abortion.

At the time of Kagan’s nomination for solicitor general, Sessions said her decision to bar military recruiters on campus had “placed her own opposition to military policies above the need of our military men and women to receive good legal advice, even from Harvard lawyers.”

On Tuesday, Sen. Orrin Hatch of Utah, one of seven Republicans who voted to confirm Kagan for her current post, said the military recruitment issue was “a very serious problem,” although he added that, “there are other things that are very good about her.”

Kagan was approved as solicitor general on a 61-31 vote. None of the seven GOP senators who backed her then have committed to do so again, and two of them, Hatch and Sen. Jon Kyl of Arizona, the No. 2 Republican, emphasized Monday that they would approach her appointment to a lifetime job differently than a political post.

For the most part, Republican-aligned outside groups responded mildly to the nomination, and their attitude as her confirmation hearings approach could help shape the party’s response.

Obama, in his announcement, said he hoped the Senate would confirm Kagan in time for her to join the court before the opening of the next term in October.

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AP writers Mark Sherman and Julie Hirschfeld Davis contributed to this report.


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