Elena Kagan: Four Potential Confirmation Hurdles


President Obama today nominated Solicitor General Elena Kagan to succeed retiring Supreme Court Justice John Paul Stevens.

Many expect her confirmation process in the Senate may go relatively smoothly. She was long considered a leading candidate for the job because of her intelligence and reputation as a consensus builder who reaches out to conservatives, reports CBS News chief legal correspondent Jan Crawford. Seven Republicans voted to confirm her as solicitor general.

But there are elements of Kagan's career that the Senate, political pundits or activists may take issue with. Here are four potential issues that may arise during Kagan's confirmation hearings:

Views on Military Recruiting

Before Mr. Obama nominated Kagan to serve as solicitor general, she was the dean of Harvard Law School, where she opposed allowing military recruiters on campus because of the "don't ask, don't tell" policy.

Kagan called the policy, which bars openly gay service members from the military, "a moral outrage" of the "first order," NPR reports, and refused to allow recruiters on campus.

She joined a challenge to the law allowing colleges to be stripped of federal money if they kept out the military recruiters, but the Supreme Court unanimously upheld the law. Consequently, Kagan immediately rescinded Harvard's policy, but in a message to students, she wrote, "I believe the [military's] policy is profoundly wrong -- both unwise and unjust -- and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services."

"Kagan's actions on Don't Ask, Don't Tell and other gay-rights issues will be prominent, in part because this is one area where she's been vocal and in part because it appears that she's let her policy preferences warp her legal views," said Ed Whelan of the conservative Ethics and Public Policy Center, Politico reports.

Lack of Bench Experience

Kagan has never served as a judge. While Mr. Obama likely sees this as a strength -- he was searching for a candidate who would bring a different perspective to the bench -- some may consider it a weakness. All nine of the current justices served on the federal bench before reaching the High Court.

While the Senate usually reviews a candidate's previous decisions and legal arguments, there is little in the way of a paper trail that could offer clues as how to Kagan would serve as a justice.

The Washington Post reports that Kagan has displayed confidence and competency as the federal government's top lawyer and representative before the Supreme Court, even though she had never argued an appeal before becoming solicitor general.

"As solicitor general, she has argued some of the most important constitutional challenges to congressional actions," Robert Barnes reports. "Despite the lack of experience, she has from the beginning displayed a confident, at times conversational, style. She has stood up to tough questioning from the justices, matched their challenges and fared better with some than others."

But that is little comfort to some.

"I'm deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering," said David McIntosh, co-founder of the Federalist Society and former congressman from Indiana, Jan Crawford reports. "Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory."

White House Photo by Pete Souza

Position on Executive Power

The liberal community is skittish about Kagan's nomination because, out of the presumed top contenders for the spot, she has a relatively permissive position on executive powers.

In a 2001 law review article, Kagan defended efforts by the Clinton White House to impose greater centralized control over executive agencies, the New York Times reports. Also, after being selected to serve as solicitor general, she endorsed an interpretation of the Congressional authorization to use military force against al Qaeda.

In her role as the government's top lawyer, she has also had to defend the administration's attempts to muzzle lawsuits using the state secrets privilege and has fought a ruling granting habeas corpus rights to some detainees in Afghanistan.

However, in a 2005 letter to Sen. Patrick Leahy (D-Vt.), Kagan and three other law school deans expressed their opposition to a bill proposed by Sen. Lindsey Graham (R-S.C.) that would strip the court of its power to review the detention practices at the prison at Guantanamo Bay, NPR reports.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals."

Career History at Goldman Sachs

Kagan's stint as part of an advisory council for investment banking firm Goldman Sachs could also become a point of contention.

She served on the council between 2005 and 2008 and was tasked with providing expert "analysis and advice to Goldman Sachs and its clients." She received a $10,000 stipend for her work, USA Today reports.

Since then, Goldman has come under fire for its actions in the subprime mortgage market and has been charged with fraud by the Securities and Exchange Commission.

White House Press Secretary Robert Gibbs was questioned about Kagan's role at Goldman on Friday, the Huffington Post reports. Gibbs said the panel "had absolutely nothing to do with decisions Goldman is being investigated for" and said her position there would have no impact on her nomination.

Others are not so sure.

"I just don't understand why the Administration would want to makes themselves and their nominee vulnerable to the opposition at a time when American skepticism of Wall Street is at an all time high," an unnamed progressive strategist told the Huffington Post. "This is like handing the Republicans the mantle of populism just for trying to oppose Kagen's confirmation."

More Coverage of Kagan's Nomination:

Obama to Nominate Elena Kagan to Supreme Court
Jan Crawford: Kagan Is a Strategic, Not Political Pick
Early Conservative Reaction to Kagan Nomination
Jan Crawford, Bob Schieffer on Why Obama Nominated Kagan
Schieffer Sees Bitter, Vicious Fight Over Kagan
Eliot Spitzer: Kagan Would "Get the Fifth Vote"
Commentary: Elena Kagan's Goldman Sachs "Connection"
Kagan Had Rapid Ascent to High Court Nomination