Kyl, Feinstein Parry on Court Pick Kagan

Sen. Jon Kyl, R-Ariz., and Sen. Dianne Feinstein, D-Calif., appearing on "Face the Nation" Sunday, May 16, 2010.
Sen. Jon Kyl, R-Ariz., and Sen. Dianne Feinstein, D-Calif., appearing on "Face the Nation" Sunday, May 16, 2010.
CBS
Updated 2:49 p.m. ET

Solicitor General Elena Kagan's nomination to the Supreme Court by President Obama has been met with mixed reactions - praise by many Democrats and criticism by many Republicans, with much discussion over her position on terrorism.

Former House Speaker Newt Gingrich has already spoken out strongly against Kagan. On Sunday the Republican said that, with the United States fighting two wars, there was no place for an "anti-military" Justice on the Supreme Court.

On CBS' "Face the Nation" this morning, Sen. Dianne Feinstein (D-Calif.) called Gingrich's contention that Kagan is anti-military "nonsense."

"I think it's Gingrich hyperbole. I hope no one would fall for that," she told anchor Bob Schieffer.

Also appearing on the program was another member of the Senate Judiciary Committee, John Kyl (R-Ariz.), who said he didn't know whether Kagan was anti-military, but that her experience as Dean of Harvard Law School criticizing the military's "Don't Ask, Don't Tell" policy would come up in the confirmation hearings.

One problem Kyl has with Kagan is her position on terrorism. He said that in 2005 he and Sen. Lindsey Graham (R-S.C.) drafted a law in which terrorists were deemed "enemy combatants" and that Kagan opposed the bill (which was eventually passed).

Reading from notes he had with him, Kyl said, "She compared our bill to the 'fundamentally lawless actions of dictators.'

"Now, that's not very judicious, and I don't know whether she would recuse herself from cases that involved those kinds of questions, but it is certainly a question that I'm going to have to ask her: Can she lay those political views aside when she deals with a case concerning terrorists?"

When asked what Feinstein thought of Kyl's concerns, she said, "I'm not aware of this, so I've got to look into it much more deeply."

Feinstein added, "I don't happen to support the "Don't Ask, Don't Tell" policy. That doesn't mean I'm 'anti-military.'"

Citing Kagan's credentials, Feinstein said, "This is an inordinately qualified woman. [I]t's not easy to be summa cum laude from Yale, go to Oxford, be summa cum laude when you get your law degree from Harvard, be professor of law at the University of Chicago, dean of the Harvard School, adviser to the president, and the top lawyer for the government before the Supreme Court."

Kyl, who voted in favor of Kagan for her current position as Solicitor General, said that vote does not necessarily mean he'll vote for her confirmation as a Supreme Court Justice.

"We have an obligation as Senators to do our due diligence, to find out all we can about her background, because once she's confirmed to the court, if she is, there's no appeal from her decisions. She is the last word," he said.

He cited her lack of experience as a judge as a reason it may be difficult for Kagan to do that. "[I]t's more difficult to know whether she is actually able to set her views aside," he said.

She explained that in the time she has spent with Kagan since her nomination, she found Kagan to be "a woman that was very down-to-earth, a woman that I think Americans would respond to extraordinarily positively."

She added, "I think what you see is a very mainstream thinking individual who has a warm personality, who has qualifications for the court. Now, when she wrote as an adviser to a president, she obviously provided advice that she thought was true and beneficial to that individual."

Turning to abortion rights, Schieffer asked Feinstein if a memo Kagan wrote as an advisor to President Clinton urging him to reject partial birth abortions was going to count against her in the eyes of abortion rights activists.

"I have looked at that memo," said Feinstein. "As a matter of fact, I showed it to her when she came in to meet with me, and essentially what there were were two amendments. One by Senator Daschle and one by someone by the name of Dianne Feinstein. And [Kagan] advised the president that she thought that the Daschle amendment was the one that the administration should support.

"It was a little bit tougher with respect to the definition of health of a woman, but it dealt with the health of a woman," said Feinstein. "And those of us who are pro-choice believe that Roe v. Wade's admonition that the health and life of the mother must be taken into consideration is important."

Ultimately, Clinton vetoed the partial birth abortion bill.

Kagan has called Supreme Court confirmation hearings vapid and hollow. Kyl said that because of that statement, some Senators may try to make the hearings more substantive based on Kagan's own criticism of them. But he said that Kagan would be wise to make her answers more general.

"You should never answer a Senator's question about how you're going to decide a case," he said. "Because the case is not yet before you and you don't know all of the facts and the law. And that's what gets back to the question of lack of judicial experience. We just don't have any way really of judging whether she can lay her views aside and decide cases just based on the facts and law."

Kyl has spoken openly of his concern about Kagan's lack of experience on the bench. He stopped short of comparing Kagan to Harriet Miers, who was nominated by President George W. Bush, saying, "We were all trying to be rather judicious about [Miers' nomination], but you will note that her nomination was withdrawn, and there were reasons for that."

Finally, Schieffer asked if Republicans were likely to filibuster Kagan's nomination.

"I don't think so," Kyl said. "The filibuster should be relegated to the extreme circumstances, and I don't think Elena Kagan represents that."