It’s rare for conservatives and progressives to find common ground on anything in Washington these days, and rarer still for Left and Right to concur when it comes to something as contentious as a Supreme Court nomination.
Yet both sides of the political spectrum can agree on this much heading into the start of next week’s confirmation hearings for President Obama’s nomination to the high court: very little is known about how Elena Kagan could rule should she be confirmed as the next associate justice.
The Senate Judiciary Committee is scheduled to begin hearings Monday to consider the nomination of Kagan to succeed retiring Justice John Paul Stevens.
Conservatives have come out strongly to oppose Kagan’s nomination. Sen. Jeff Sessions, the ranking Republican on Judiciary and likely to be among Kagan’s fiercest opponents during her hearings, on Monday raised what is probably the least perjorative criticism she faces.
“The truth is, her legal record is thin. She has never been a judge and has very limited experience even in the practice of law. She has never tried a case, never cross-examined a witness or made a closing argument in a trial,” Sessions says.
To be sure, Republicans are expected to raise many more controversial and stinging arguments against Kagan’s nomination, including her handling of military recruiters on campus when she was dean of the Harvard Law School.
And while certainly there is no love lost between the Alabama conservative and the American Civil Liberties Union, the ACLU came to exactly the same conclusion about a general lack of knowledge of Kagan’s fundamental views in an analysis of the nominee’s legal career which also was released Monday.
“The simple truth is that there is much that we do not know about Kagan’s views on the Constitution and the Court,” the ACLU report says. “Most fundamentally, she has said very little so far about her approach to constitutional interpretation. More specifically, the available record offers very few clues about her constitutional views on criminal justice, immigration, voting rights, prisoners’ rights, due process, the Establishment Clause, and a host of other recurring Supreme Court topics.”
As the ACLU notes, Kagan has spent her entire professional career in government and academia except for one three-year stint as an associate at the firm of Williams & Connolly in Washington during the late 1980s. She currently serves as Obama’s solicitor general, his top lawyer before the Supreme Court.
The ACLU finds little to go on even in Kagan’s published writings over the years in law journals.
“By comparison to most recent Supreme Court nominees, there is a relatively slim paper record on which to evaluate Kagan’s views on a wide range of issues,” the ACLU report finds. “Her legal scholarship is impressive but it has been focused primarily on two areas: free speech and presidential power. Even where she has written extensively, her conclusions are often framed cautiously. Her articles frequently begin with a disclaimer that they are intended to be descriptive rather than normative, to raise questions rather than to offer solutions.”
The report notes that although Kagan’s current work as solicitor general is more forceful in its advocacy, she represents the views of the Obama administration — not necessarily how she would rule as a sitting court justice.
Elena Kagan has spent the past quarter century in academic life and government service, and the ACLU notes that even her critics acknowledge her intellect and knowledge of the law.
“Over that time, she has compiled an impressive record of personal accomplishment while revealing very few of her personal views on most of the difficult issues she is likely to face if confirmed to the Supreme Court,” the ACLU says.
Next week will reveal how senators deal with so little to go on when they engage Kagan in what is often a cat-and-mouse game during Supreme Court nomination hearings.
The publisher of the news site On The Hill, Scott Nance has covered Congress and the federal government for more than a decade.