Kagan proving to be an elusive target

Politico reports today on the eve of Elena Kagan’s confirmation hearing that Republicans had hoped to make the event a “teachable moment” on judicial activism, convinced that nothing they do would derail her nomination to the Supreme Court anyway.  Thanks to two different crises, Kagan’s confirmation hearing may pass with as little notice as Kagan has over the last two weeks, dashing even the modest goals the GOP had in mind:

They’ve had to compete with the BP oil spill for public attention, and on Tuesday — the first day of Kagan’s Q & A — Gen. David Petraeus heads to the Hill to explain the abrupt change of command in Afghanistan.

And while the “wise Latina” comment became a focal point for opponents of President Barack Obama’s first Supreme Court nominee, Sonia Sotomayor, no similar statement has emerged from the ultra-cautious Kagan to crystallize the opposition.

Still, Republicans have settled on a strategy of painting Kagan, who has never been a judge, as a politically driven ideologue. They insist they haven’t ruled out a filibuster, though that seems highly unlikely.

“I think a recurrent theme will be: Here you have a person who has been deeply involved in policy-politics most of her life — without a judicial record to demonstrate that she can put that behind her on the bench,” Senate Minority Whip Jon Kyl (R-Ariz.), a Senate Judiciary Committee member, told POLITICO. “And therefore she’s got a burden of proof to find other ways to assure us that she will decide cases just based on the facts — and not just based on the politics.”

Democrats plan to steer the conversation away from Kagan and toward the existing Supreme Court, which they believe has gone out of its way under Chief Justice John Roberts to overturn congressional judgments and long-standing legal principles.

The passing of Robert Byrd would make a filibuster a little more likely to succeed, but not for long.  The Senate won’t cast a floor vote on Kagan for at least a couple of weeks, and this week will probably consist mainly of tedious paeans to the recently deceased Senator from West Virginia.  By the time the Senate gets to a floor vote on Kagan’s confirmation, Joe Manchin will likely be sitting in Byrd’s old seat.

Besides, few in the GOP have the stomach for a filibuster, as the Boss Emeritus writes today:

Beltway Republicans will put up just enough of a fight to placate grass-roots conservative activists on Kagan’s radical social views, while the nutroots will pout (but not too loudly) that Kagan isn’t enough of a liberal activist for them. And GOP Sen. Lindsay Graham, after several minutes of obligatory grandstanding mixed with obsequious suck-uppage, will cast his vote with Kagan and Obama — as he did with Sonia Sotomayor (whom he praised as “bold” and edgy”).

To be fair, the only hooks Republicans have for a filibuster would be incompetence, based on Kagan’s lack of judicial experience, and the argument that she violated the law in keeping military recruiters off of the Harvard Law campus.  In order for the former to stand, Kagan will have to demonstrate on-camera incompetence, as a dearth of material from Kagan’s career (thanks to the Clinton Library’s footdragging) makes it difficult to build a positive argument for incompetence.  The latter relies on the Solomon Amendment, which is just arguable enough to keep it from submarining Kagan’s prospects.

Michelle notes Kagan’s hostility to the Second Amendment as a possible entree for fireworks:

Will Kagan impersonate Joe Biden? Kagan’s hostility to the 2nd amendment is certain to be raised by Republicans. When faced with criticism from gun-owners regarding his boss’s views, Biden turned into a gun-slinging cowboy — and attempted to assuage self-defense activists by bragging about his own shotguns and Berretta.

Unfortunately, as Matt Lewis notes, the nation’s premier 2nd Amendment defense organization has instructed its board to sit on the sidelines:

According to RedState’s Erick Erickson, a prominent conservative blogger, “internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues” during the Kagan hearings.

It turns out that during the confirmation hearings for then-Supreme Court nominee Sonia Sotomayor, the testimony of former NRA President Sandy Froman angered current NRA leadership, because she didn’t obtain permission to appear at the hearing – and because she appeared as former President of the NRA (she’s also a Harvard Law grad a practicing attorney). The situation worsened when several members of the NRA board of directors also signed a letter opposing Sotomayor. …

Because most members of the NRA’s board of directors are also heavily involved in numerous other conservative organizations, it seems unusual the NRA would expect board members to remain silent on the Kagan nomination (in fact, many have already spoken out).

More likely, the NRA, which is heavily involved in lobbying in Washington, does not want board members representing themselves as speaking for the organization without its approval. And it’s reasonable to assume that testifying in a Senate hearing against Kagan would be frowned upon more than simply writing a column that does not mention any affiliation with the gun group.

But even that explanation is not likely to satisfy a growing number of conservatives who believe the gun group should vehemently oppose Kagan’s nomination based on the fact that as President Obama’s Solicitor General, she did not weigh in on what they consider a landmark Second Amendment case involving the constitutionality of the city of Chicago’s gun ban.

These conservatives also see the NRA as having become too much a part of the “Washington scene” in recent years.

In other words, don’t expect much when this hearing starts tomorrow.

Update: Senator John Cornyn raises expectations with his USA Today column yesterday:

[T]here are two reasons to suspect that Kagan would be a judicial activist if confirmed to the Supreme Court. First, she has named as her heroes some of the most liberal judges of the past few decades. One hero is Israeli Supreme Court Judge Aharon Barak, who is not merely out of the U.S. legal mainstream; he’s swimming down a completely different river. Another hero is Justice Thurgood Marshall, who won a great victory in Brown v. Board of Education as an advocate before the Supreme Court, but became a notorious judicial activist once he joined it. Marshall described his judicial philosophy as “do what you think is right and let the law catch up,” and the White House has assured liberal interest groups that Kagan’s judicial philosophy owes much to her former mentor.

Second, it is reasonable to worry that Kagan is a judicial activist simply because President Obama nominated her. The president has said that a judge should look beyond the law to his or her own personal values, empathy and “core concerns.” He has said that the critical ingredient in judging is often supplied by “what is in the judge’s heart.” …

The Senate Judiciary Committee needs to determine whether Kagan is a judicial activist, and we must be wary of another “.” Last year, then-Judge Sonia Sotomayor disavowed any activist convictions before our committee. She specifically said she wouldn’t approach the issue of judging in the way the president does, and that “judges can’t rely on what’s in their heart.” Yet since her confirmation, she has been aligning herself with the court’s liberal wing and voted the same way as Justice Ruth Bader Ginsburg about 90% of the time.

I respect Elena Kagan’s intellect, and this week I intend to take some of her advice. In 1995, she wrote that senators must determine what perspective a judicial nominee would add to the bench, as well as “the direction in which she would move the institution.” Those remain very much open questions with regard to her own nomination, and I hope she will take the opportunity this week to answer them.

Failing that, Republicans should get her on the record as having refused to do so.

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