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Under the U.S. Supreme Court: Kagan headed for OK Corral

By MICHAEL KIRKLAND   |   June 6, 2010 at 3:30 AM
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WASHINGTON, June 6 (UPI) -- Elena Kagan, President Barack Obama's choice to succeed retiring Justice John Paul Stevens on the U.S. Supreme Court, is headed for Senate confirmation hearings June 28.

Will she suffer during what former Justice Sandra Day O'Connor calls a "dreadful, unpleasant" process?

Short. Cherubic. Affable. Much younger looking than her 50 years. Smart as hell. Kagan is nobody's chump. Will she be pummeled and bruised, kicked and rabbit punched by arthritic old men in blue pinstripes, finally left broken and bruised on the cool senatorial marble floor?

Probably not.

Middle-of-the-road Republicans on Capitol Hill already have been whispering sweet nothings about Kagan, the first woman U.S. solicitor general, into reporters' ears for days.

For now, most of her critics seem to be playing soft ball.

True, Senate Minority Leader Mitch McConnell of Kentucky last week complained Kagan's job in the Justice Department makes her too close to the Obama administration. But many justices have held positions in administrations.

Another rap on Kagan is that she has never served as a judge. How soon those critics have forgotten William H. Rehnquist, who had never been a judge but served as chief of the Justice Department's Office of Legal Counsel before President Richard Nixon -- who called him "Renchburg" on the White House tapes -- appointed him to the Supreme Court in 1972.

Rehnquist was a justice until 1986, then rose to become chief justice, serving until he died of cancer in 2005.

One Republican critic who isn't playing softball is Sen. Jeff Sessions, ranking member on the Senate Judiciary Committee. Sessions has been dogging Kagan since before she was nominated, often appearing on television with committee Chairman Patrick Leahy, D-Vt.

While Leahy made demurring noises, Sessions told ABC news last month Kagan had "violated" the law by temporarily banning military recruiters from campus when she was dean of the Harvard Law School because the Pentagon's "don't ask, don't tell" policy violated the school's anti-discrimination policy.

"She disallowed them from the normal recruitment process on campus. She went out of her way to do so," Sessions told ABC. "She was a national leader in that, and she violated the law of the United States at various points in the process."

Kagan supported but did not join a suit trying to overturn the Solomon Amendment, which took away federal funds from schools that barred recruiters. When an appeals court struck down the law, Kagan issued her ban; when the Supreme Court reversed and upheld the law, Kagan allowed recruiters back on campus.

Sessions comments echoed those of former Republican House Speaker Newt Gingrich, ABC reported.

"She, as dean of the Harvard Law School, took an effort to block the American military from the Harvard campus all the way to the Supreme Court during a war," Gingrich said at a National Rifle Association convention. "And that is an act so unbecoming of an American that she should be disqualified from the very beginning."

Their views aren't shared by all Republicans. Sen. Scott Brown, R-Mass., elected earlier this year to Ted Kennedy's seat and considered a rising GOP star, told The Boston Globe he was satisfied with Kagan's explanation for barring military recruiters.

The real threat to Kagan's nomination might lie in the 160,000 pages of documents the committee has requested from the Clinton Presidential Library in Little Rock, Ark. The documents relate, some very tenuously, to Kagan's service as an aide to President Bill Clinton in the 1990s.

Sessions and other Republicans want more time than now scheduled for the hearings, in part to review the documents. Given the chance, they are expected to go over the material with a fine tooth comb.

Sen. John Cornyn, R-Texas, said after a private meeting with Kagan he thinks the Clinton material will help reveal her true philosophy as a judge, Fox News reported.

The Clinton library material was not reviewed when Kagan was confirmed as solicitor general last year.

Though he hasn't commented publicly, Clinton also could throw a monkey wrench into the process if he claims executive privilege for some of the documents. Presidents often claim the privilege when it comes to advice given to them by Cabinet officers or aides privately.

Though Sessions repeatedly attacks Kagan on the military recruiter issue, he says one area he won't touch is her personal life.

A former Republican congressional staffer, writing in his CBS blog, said Kagan would be the court's first "openly gay justice." The White House issued a quick and definite denial, and the blogger was forced to concede he had based his information on somewhat murky "rumors."

"I think you've got to be careful about that. I don't believe that is a fundamental judgment call on whether a person can be a good judge or not," Sessions told ABC.

Kagan, of course, has already been through a tough nomination process, being confirmed by the Senate in March last year 61 to 31. The process included tough questions from the Senate Judiciary Committee, including several from Sessions and his allies.

She is unlikely to be surprised this time around as she tries to become the fourth woman to ascend to the Supreme Court.

Besides being the first female U.S. solicitor general, Kagan was also the first female dean of the Harvard Law School. Her brilliance is attested to by both conservatives and liberals.

If a senator tries to rough her up during the hearings, he or she may find out that those tiny little hands of Kagan's have some pretty big knuckles.

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