Midterm politics form Kagan backdrop

Hearings on court pick will air parties’ issues

For immediate impact, Democrats see advantages by promoting another woman, Elena Kagan, to the Supreme Court. For immediate impact, Democrats see advantages by promoting another woman, Elena Kagan, to the Supreme Court. (Pablo Martinez Monsivais/ Associated Press/ File)
By Mark Arsenault
Globe Staff / June 28, 2010

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WASHINGTON — With little drama remaining about the outcome, the political theater that will begin today with Elena Kagan’s confirmation hearings is more about positioning for the midterm elections than whether she will be installed as the next Supreme Court justice.

A solid performance by Kagan will assure her confirmation to replace Associate Justice John Paul Stevens, specialists say, given Democrats’ control of 59 Senate seats. And after rounds of careful preparation and rehearsal, the former Harvard Law School dean and current US solicitor general is unlikely to make any fatal mistakes under the bright lights of the Senate Judiciary Committee.

But her public appearance and the opportunity to pose tough questions will give members of both parties a platform to debate their views on a variety of constitutional issues, including the ideological tilt of the high court and competing philosophies about the role of the judicial branch.

By replacing the liberal Stevens, Kagan would not significantly change the court’s political direction. Nonetheless, senators both on and off the committee see oppor tunities to rev up their supporters ahead of the November midterm campaigns.

“It’s probably a done deal,’’ acknowledged Senator James Inhofe, a Republican from Oklahoma who is not a member of the Judiciary Committee, on Kagan’s prospects for confirmation. “But I will use her, if she is confirmed, as an issue.’’

For Republicans, the hearings are an opportunity to remind social conservatives why they should still be excited to vote for their party in a year in which economic issues have dominated.

“Republicans will show them, through their opposition to Kagan, that they’re still with them on the issues they care about, such as abortion and gay marriage,’’ said Larry Sabato, director of the University of Virginia’s Center for Politics.

And for immediate impact on the midterm elections, Democrats see advantages by promoting another woman to the Supreme Court, which would bring the roster to three — Kagan; Sonia Sotomayor, Obama’s previous nominee; and Ruth Bader Ginsburg — the most ever.

Senator Robert Menendez, Democrat of New Jersey and the chairman of the Democratic Senatorial Campaign Committee, said Republicans run the political risk of alienating women if their attacks on Kagan appear over the top, especially after most GOP senators opposed last year’s nomination of Sotomayor.

“I think they’ll have a credibility problem if they can’t seem to accept any woman that’s nominated,’’ he said.

Kagan’s confirmation will unfold in the Hart Senate Office Building, where Sotomayor was confirmed last year. Putting the questions to Kagan will be seven Republicans and 12 Democrats, led by chairman Patrick Leahy of Vermont.

The committee’s one other New Englander is Democrat Sheldon Whitehouse, a former Rhode Island attorney general. Senator Jeff Sessions of Alabama, a former US attorney, will lead the Republican charge.

Democrats tout Kagan as a potential bridge across the ideological gulf on the court, frequently seen in 5-to-4 decisions.

“She is an unusually gifted person when it comes to building coalitions,’’ said Senator Dick Durbin, Democrat of Illinois. “She is going to be able to build consensus, I think, where others have failed.’’

The Republicans’ case against Kagan has been slowly coalescing for weeks. They will pursue several angles of attack, beginning with frequent mention that Kagan has never been a judge and has a slim record arguing cases in court. The GOP catch phrase is that Kagan lacks legal experience on both sides of the bench.

This argument, however, was hurt on Thursday by the American Bar Association, which vets judicial nominees. The ABA gave Kagan its highest rating: “well-qualified.’’

Viewers of the televised hearings can also expect to hear the phrases “activist judge’’ and “judicial activism’’ many times, as well as competing definitions of those terms, as senators offer differing visions for what makes a good judge.

“It’s an important point in the nation’s legal history,’’ said Sessions, the ranking minority member of the Judiciary Committee. “We are wrestling with the direction judges and courts should take.’’

Republicans — who have not ruled out a filibuster — will seek to define Kagan through her liberal associations to paint her as an activist who would write new laws from the bench.

“You have to ask who she admires, who she identifies with, who she supports, who she worked for,’’ said Sessions.

In describing a good judge, Republicans like to paraphrase Supreme Court Chief Justice John Roberts, who compared judges to baseball umpires, who call balls and strikes, adhering strictly to the constitutional rules. Democrats, in turn, argue that Roberts and the court’s conservative bloc favor big corporations over the little guy, and that the court has lost touch with how legal decisions affect real people.

“The debate will unfold with one precise and big question laid before Elena Kagan,’’ said Gary Marx, director of the conservative Judicial Crisis Network: Which view of a judge does she take? Her answer will transfix lawyers and judicial scholars around the country, he said.

“That will be the dramatic moment when we know who’s going to win the debate.’’

Kagan helped with the confirmation of left-leaning Ginsburg and clerked for two liberal judges, Abner Mikva, a circuit judge, and Supreme Court Justice Thurgood Marshall. The name Aharon Barak is also likely to come up. Republicans call Barak, the retired president of the Supreme Court of Israel, the leading activist judge in the world. Conservative researchers have found newspaper articles in which Kagan calls Barak her “judicial hero,’’ though Democrats don’t sound worried about this line of attack.

“I’ve never seen such an effort to grasp at straws to defeat someone,’’ said Leahy.

Another allegation to be hammered throughout the hearings is the notion that Kagan is antimilitary.

Republicans will question her aggressively about her move to restrict military recruiters on campus as dean of Harvard Law School. Kagan denied recruiters access to students through official school channels, because the military’s ban on openly gay service members violated the school’s nondiscrimination policies. Recruiters still had access to students through a student veterans group.

Senator Scott Brown, Republican from Massachusetts, undercut the attack in May, saying after a private meeting with Kagan that he was satisfied she held no antimilitary bias. Republicans have since sharpened the jab, saying the “Don’t Ask/Don’t Tell’’ policy Kagan found so objectionable came from the Clinton administration, in which Kagan later accepted a job.

The hearings are expected to last about a week. Justice Stevens is retiring at age 90. Should the 50-year-old Kagan be confirmed, the events of the coming test could echo through American law for the many years.