Kagan hearing: Day 1: partisan bickering

Except that she was wearing a bright blue jacket and sitting in the middle of the Senate hearing room, U.S. Supreme Court nominee Elena Kagan was, in one sense, invisible on the first day of her confirmation.

The members of the Senate Judiciary Committee spent much of their time Monday singing the praises of Senator Robert Byrd (D-WVa.) who died Sunday night, and much of the remaining time slinging partisan barbs at one another.

That may be in part because so many political pundits have declared Kagan’s confirmation is virtually inevitable; it may be because confirmation hearings have become such a predictable series of thrusts and parries.

Kagan’s own statement was unremarkable except, perhaps, for the fact that she did not make the traditional introductions of individual family members. Kagan’s parents are deceased, but she indicated her two brothers were in the confirmation hearing with her. Instead, she simply thanked the “family, friends, and students” who had joined her in the confirmation room and then turned and looked down a row of people sitting behind her.

Republicans frequently portrayed Kagan as anti-military, lacking in judicial experience, and inclined toward “activism.”

The Committee’s ranking Republican, Jeff Sessions (R-Alabama), said Kagan “kicked the military out of the recruiting office” at Harvard Law School “in violation of federal law.”

“Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas,” said Sessions. He also suggested that she took actions that “deliberately and unnecessarily” put the military’s “Don’t Ask, Don’t Tell” policy in jeopardy.

Other Republicans made much the same claim, contending that Kagan defied the federal Solomon Amendment, which prohibited federal funds to a university that barred military recruiters.

Democrats, including Senator Dianne Feinstein (D-Calif.), rebutted those claims, noting that military recruiters were not barred during Kagan’s tenure as Harvard Law dean and that Kagan simply enforced an existing policy at the school. They declared portrayals of Kagan as “anti-military” to be fiction and suggested Republicans complaining of her lack of judicial experience were attempting to apply a double-standard. They noted many justices had no prior experience as a judge, including Chief Justice William Rehnquist.

Senator Jon Kyl (R-Ariz.) said he has “substantive concerns” about Kagan’s views on “gay marriage” and other issues.

But mostly the day was spent in partisan bickering.

Senator SheldonWhitehouse (D-R.Is.) took the occasion to criticize the current Supreme Court for having taken the “extraordinary” action of “inject[ing] itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay marriage trial in San Francisco.”

Some Kagan supporters pointed to the fact that Senator Scott Brown (R-Mass.), along with Senator John Kerry (D-Mass.), introduced the nominee to the committee as a sign that Republicans can support her confirmation. But it is tradition that the two senators from a nominee’s home state introduce him or her, and Brown’s words fell far short of support. He called her an “impressive and pleasant individual” and said she had “gone far since graduating” from Harvard. Then, he simply reiterated some details from her resume.

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