May 11 (Bloomberg) -- Republicans served notice they will highlight Elena Kagan’s lack of experience as a judge, and the little time she has worked as a courtroom lawyer, when the Senate considers her nomination to the U.S. Supreme Court. That lack of judicial and litigation background -- 14 months as U.S. solicitor general and two years as a private lawyer after finishing law school -- leaves opponents without much of a record from prior cases with which to criticize President Barack Obama’s second high-court nominee.
While some Republicans questioned Kagan’s support for university protests against the Defense Department ban on acknowledged gays and lesbians, or pointed to her work with judges they consider too liberal, Democratic leaders said the former Harvard Law School dean would win approval.
“She will be confirmed,” said Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, calling Kagan a “superb nominee.”
Obama yesterday announced Kagan as his choice to replace Justice John Paul Stevens, who said last month he would retire after 34 years on the court.
Alabama Senator Jeff Sessions, the Judiciary Committee’s top Republican, said Kagan would be asked to explain her role at Harvard in defending the right of universities to restrict on- campus military recruitment to protest the Pentagon’s “don’t ask, don’t tell” policy regarding gays and lesbians.
‘A Big Issue’
“That’s a big issue she will need to talk to the American people about, and be able to explain why she felt she could reject the men and women who preserve the republic’s freedom from her campus,” Sessions told reporters yesterday.
Kagan signed a brief challenging a law that lets the U.S. government withhold millions of dollars in federal aid if a university doesn’t give military recruiters the same access to students as other employers. The Supreme Court voted 8-0 to uphold the law, rejecting Kagan’s argument.
Sessions said Republicans are concerned Kagan’s limited record of scholarly writings may not provide enough information to determine whether they can support her nomination.
Sessions said Kagan “seems to have her philosophical roots traced” from a “background of activism” by the late Justice Thurgood Marshall and former appeals court Judge Abner Mikva. Kagan worked as a law clerk for both Marshall and Mikva. Unless she renounces the judicial activism of those mentors, “there will be serious objections” to her nomination, Sessions said.
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