WASHINGTON (AP) — When President Barack Obama brought Republicans his wish list over lunch this week, GOP senators criticized virtually every goal — except confirming Supreme Court nominee Elena Kagan.
In an election year consumed by fights over health care, Wall Street and the big oil spill, Kagan’s quiet march toward a lifetime seat on the nation’s highest court is, at least for now, causing little stir.
That’s no accident. Republicans and Democrats alike acknowledge privately that one of Kagan’s major selling points as a Supreme Court nominee is the fact that just over a year ago, the Senate vetted her for the post of solicitor general — the top lawyer who argues the government’s cases before the court — and she won confirmation with seven Republican votes.
That made her an easy pick for a president battling low approval ratings and juggling an ambitious agenda — and one that ranks fairly low on lawmakers’ radar screens.
“So many of our members on both sides are involved in so many other issues,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee that will hold Kagan’s confirmation hearings.
Senators will start paying more attention in late June and early July, when they get the chance to question Kagan under oath and then debate her nomination on the floor, Sessions added. “I hear interest. The American people are interested,” he said in an interview Wednesday.
Sen. Bob Menendez, D-N.J., the head of his party’s Senate campaign committee, said GOP senators will likely want to use her nomination to motivate their conservative base, but it will be difficult to do so given that some of them backed her in the past. “If they beat up on her without real substance, it’s a risk for them,” Menendez said.
And there’s little of substance — at least for now — to power opposition to Kagan. The 50-year-old former Harvard Law School dean has never been a judge and litigated only a handful of cases, so she has a thin public record virtually devoid of ammunition for her critics.
Democrats have more than enough votes to confirm Kagan, and so far Republicans appear to have little appetite for trying to block her through a filibuster.
Things could change quickly, however. Strategists on both sides note that even the seemingly smoothest-running confirmation process can rapidly go wrong with a bombshell revelation about the nominee.
For now, Republican criticism is focusing on her role in barring the military from Harvard’s job recruitment office in protest of the prohibition against openly gay soldiers. GOP senators have faulted her for her lack of experience as a judge or courtroom lawyer. And they say they worry that, as a former member of Obama’s team, she would be a Supreme Court rubber stamp for the president’s policies.
But Republicans have for the most part stayed quiet about Kagan, biding their time until they can learn more about her and the public is paying closer attention to what they have to say. They’re hoping a new trove of information on Kagan — her yet-to-be-released files as a Clinton administration lawyer and policy adviser — will yield more details about her views and judicial tendencies.
Sessions is promising to ask for a delay of Kagan’s confirmation hearings, currently scheduled to begin June 28, if the records aren’t available well in advance.
“I don’t believe I can acquiesce in a hearing that’s not held after a reasonable time to examine any public record,” Sessions said Wednesday. “We need them in advance of the hearing and we need time to examine them, and (see) if they trigger genuine issues that need to be examined in more depth.”
Still even Sessions is hard pressed to draw attention to Kagan. A cable news interview he scheduled Wednesday morning to talk about her turned into an exchange about the Gulf of Mexico oil spill — with no mention of Obama’s nominee.
Release of the Clinton-era documents could put a quick end to the lull. The nation’s archivist, working with staff at the William J. Clinton Presidential Library in Little Rock, Ark., has said he’ll begin turning over portions of the 160,000 pages of records by next week.
In the meantime, Democrats have been keeping up a steady stream of public statements defending Kagan against any GOP criticism. Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, said Republicans should stop their “overheated rhetoric” about Obama’s nominee and give her a chance to answer questions at her confirmation hearings.
Kagan herself has acknowledged that the hearings will be the first chance the public and most senators have to learn important information about her.
“She understands the value of being able to express her thoughts and her philosophy to provide a certain level of comfort as well as understanding of the role that she will play on the court, (where she) has the potential to influence American society for many decades given her relatively young age,” said Sen. Olympia J. Snowe, R-Maine.
Snowe, one of the seven Republicans who voted to confirm Kagan as solicitor general, has praised her as qualified and balanced but said she wants to “wait and see” before committing to voting for Kagan again.