Kagan hearings begin today

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By Joseph Picard | June 26, 2010 10:22 AM EST

Confirmation hearings begin Monday for Elena Kagan, President Obama's nominee for the U.S. Supreme Court. The former dean of the Harvard Law School is expected to have a relatively easy time in securing the Senate's approval to take the high court seat being vacated by retiring Justice John Paul Stevens.

"This is what is supposed to happen," said Dan Kahan, professor of Law at Yale Law School. "The best legal minds in the country are supposed to attain to the Supreme Court. Elena Kagan is one of the best legal minds in the country. She's a great lawyer and, as a member of the profession, I am proud of this nomination."

According to the Constitution, the President submits nominations for the Supreme Court to the Senate for advice and consent. The process of confirmation begins with hearings before the Senate Judiciary Committee, where the nominee's qualifications are explored by the panel of  Senators. If the committee approves the nominee, the appointment is then voted on by the full Senate.

Since the establishment of the Constitution in 1789, 160 Presidential nominees have been vetted by the Senate, and 123 have been approved.

Several times in recent decades, confirmation hearings have been contentious, and some downright nasty -- for example, the hearings for Justice Clarence Thomas in 1991, and Robert Bork in 1987. Thomas was confirmed. Bork was rejected. The hearings in both cases became media and political circuses.

No one is predicting that for Kagan, who is 50 years old and currently the U.S. Solicitor General - in other words, the president's attorney. If confirmed, she would become the fourth woman to serve on the high court, following Sandra Day O'Connor, Ruth Bader Ginsberg and Sonia Sotomayor.

"I don't think the Republicans will throw anything substantial at her because they don't have anything to throw," said Geoffrey Stone, professor of Law at the University of Chicago Law School.  "There may be some probing. The Republican Senators will practice due diligence and study her record, and politically they would like to find something. But there really isn't anything to find."

Susan Low Bloch, professor of Law at Georgetown University Law School, agreed.

"The confirmation hearings have become a sort of Kabuki theater, so she will probably get some tough questions, and there will be some posturing from some Senators," Bloch said. "But there are not going to be any skeletons in the closet. She will do fine."

Although Kahan, Stone and Bloch were all contacted independently, each of them knows Kagan. Stone was dean of the University of Chicago Law School when Kagan taught there. Kahan was her colleague at Chicago and Bloch has met Kagan and audited one of her law classes.

"Everyone who knows Elena likes her and cannot help but be impressed by her charm and her intellect," Bloch said. "She has great people skills. She is disarming and witty, but not at all frivolous. My guess is that the Senators, including the Republican Senators, are going to be impressed."

"When they question Kagan, Republican Senators will feel a mix of frustration, because they cannot stick her with anything, and relief, because she is so evidently a good, sensible choice." Kahan said

One objection being raised to Kagan's nomination is that she has never sat as a judge.

Professor Bloch pointed out that some of our most illustrious Supreme Court Justices were never judges, including Lewis Powell, Felix Frankfurter, William O. Douglas and William Rehnquist.

"Presidents got into the habit of nominating sitting judges because a judge will already have had the experience of a confirmation hearing, and they wanted their nominee to be prepared," Bloch said. "But Kagan has had a confirmation hearing for Solicitor General. She's been through it."

Kahan said that the drama and grandstanding that confirmation hearings often evoke from participants has caused presidents to be overcautious in choosing nominees, so that the best person for the job is often overlooked.

"It is no secret that the path to the Supreme Court is strewn with land mines and you can only tread it by keeping your head down," Kahan said. "That is not the way it should be and, thankfully, with Elena Kagan's confirmation hearings it will not be that way."

Currently the nine-member high court tilts towards the right of the political spectrum, with Chief Justice Roberts and Justices Alito, Scalia and Thomas conservative in their general outlook, and Justice Kennedy, who is somewhat more moderate, often voting with them. The four more liberal judges are Justices Ginsberg, Breyer, Sotomayor and Stevens. Since Kagan would be replacing Stevens, the political dynamics of the court are not likely to greatly change.

But it is not always so cut and dry, Bloch said.

"Kagan can be called a liberal, but she is not a radical and not an ideologue," Bloch said. "Rather, she is a pragmatist and a problem solver. I believe the chemistry between the Justices is very important. She may not influence Justice Kennedy right away or very much. But, in the long term, she is going to have an influence on her fellow Justices, especially new ones coming up after she has established herself on the court."

"She is more liberal than conservative," Stone said. "But she is a sensible legal scholar who practices restraint. She is like Justices Souter and Breyer in that respect."

All three professors think she will be confirmed and will serve honorably and effectively.

"She is a very smart person and will be a very good Justice," Stone said.

Hearings are due to begin at 12:30 p.m.

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