Kagan campaigns for Supreme Court job

May 18, 2010

Associated Press

JULIE HIRSCHFELD DAVIS

WASHINGTON - Reaching out to potential converts, Supreme Court nominee Elena Kagan is dropping carefully calculated hints about her judicial approach on issues ranging from political speech to national security.

Kagan, who stepped aside from her post as solicitor general Monday, isn't revealing much as she plods through a painstaking series of Capitol Hill meetings with the senators whose backing she needs for confirmation. But the 50-year old former law school dean — who has never been a judge — has weighed in cautiously on several issues as she strives to paint a fuller picture of what kind of a justice she might be.

Take, for example, her closed-door exchange last week with Sen. Arlen Specter, D-Pa., who voted against Kagan's confirmation as the government's top lawyer last year on the grounds she wouldn't talk about her legal views.

Kagan made clear that she disagreed with a recent Supreme Court ruling that has provoked intense partisan debate, according to Specter. She criticized the court's January ruling upholding the First Amendment rights of corporations and labor unions to spend money on campaign ads, thus enhancing their ability to influence federal elections.

"She said she thought the court was not sufficiently deferential to Congress," Specter said.

In commenting on a case, Citizens United vs. FEC, Kagan was breaking with tradition. Judicial nominees, particularly for the high court, rarely if ever weigh in on a ruling — much less a recent, highly controversial one — on the grounds that it could come before them in the future.

But her stated gripe had little to do with the politically charged debate over the ruling, which President Barack Obama has assailed as giving corporations power to warp elections and which Republicans have praised. Instead, Kagan couched her criticism in terms of the principle that the Supreme Court should defer to Congress.

That was a key element of her defense when she argued the case unsuccessfully as solicitor general last year.

Kagan's recent comment was sure to appeal to Democrats and middle-of-the-road Republicans who oppose the ruling, but might also appeal to conservatives who favor judicial restraint.

"You have to walk a thin line down the middle," said Tom Korologos, a veteran chaperone of Republican nominees to the high court.

Kagan has likely already crossed that line in the eyes of some GOP critics. The Senate's top Republican blasted her Monday for her position on the Citizens United case, saying it amounted to a rationale for allowing the government to stifle free speech.

"No government should have that much deference," McConnell said.

Sen. Jon Kyl of Arizona, the No. 2 Republican, said Kagan's thin record leaves him questioning whether she could be an impartial justice, and said he worries "she might have a hard time leaving her political views behind."

Kagan, whom Obama named to replace retiring Justice John Paul Stevens, is for now on a smooth road to confirmation this summer. Democrats have more than enough votes to push through her nomination, and Republicans — seven of whom backed her for her current job — appear to have little appetite for mounting a filibuster to try to block her.

Still, like any good politician, Kagan is working to shore up her base and reach out to waverers in the middle, using charm and ingratiating comments to smooth her way. She was scheduled to return to Capitol Hill Tuesday for more meetings with Republicans and Democrats who sit on the Judiciary Committee that will hold her confirmation hearings.

Knowing that Specter bristled at her previous reticence, Kagan showed up at his office last week prepared to be chattier. She commiserated with him over how difficult it can be to get straight answers out of Supreme Court nominees, standing by an article she wrote in 1995 that criticized the process as a "charade."

Kagan also has positioned herself as a moderate. Faced with GOP charges that she'd be a liberal "rubber stamp" for Obama, the nominee has said there's at least one area in which she agrees with the court's conservative majority.

Kagan told Sen. Dick Durbin, D-Ill., that she thinks the court is on the right track in its rulings on national security and presidential powers.

"She said that she thought that the court was moving in the right direction in a difficult era when we are truly dealing with the threat of terrorism," Durbin said.

The White House has at least one minder from Obama's team — usually more — accompanying Kagan as she canvasses Capitol Hill. And his aides are working behind the scenes to clear potential obstacles to her confirmation.

The NAACP came out Saturday with an early endorsement for Kagan after having initially expressed doubts about her nomination. It was a testament to the quiet work Kagan's allies are doing to promote her.

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