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Elena Kagan Faces Political Challenges for Supreme Court Seat

May 11, 2010 at 12:00 AM EDT
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Jim Lehrer talks to two Supreme Court watchers, Karen Tumlty from The Washington Post and Tom Goldstein, founder of, about the political landscape for the confirmation of nominee Elena Kagan.

JIM LEHRER: Now: a look at the Supreme Court nomination of Elena Kagan 24 hours later, as seen by Karen Tumulty, national political reporter for The Washington Post, and Tom Goldstein, a Washington lawyer and founder of

Karen, how would you characterize the reaction to the nomination itself, up until now at least?

KAREN TUMULTY, national political correspondent, The Washington Post: Well, by nominating the first nominee in almost 40 years who doesn’t have a record on the bench, the president really hasn’t given his opponents much by way of ammunition here.

But what you’re hearing from the right is largely the suggestion that — that the president is looking for somebody who would be — the phrase you heard more often than any other yesterday was rubber stamp for his own policies on the court.

Liberals have largely been pretty supportive of this nomination, although there are, again, a few misgivings, because Elena Kagan really doesn’t have that much of a record for people to — to base their — put their faith in at this point.

JIM LEHRER: What would you add to that, Tom, just in terms of general reaction?

TOM GOLDSTEIN, SCOTUSblog.COM: I think it’s been pretty muted so far. And I think the administration is probably pretty happy about that.

They were not looking for something that would jazz up either their own base or the conservative base. What they wanted was someone who had a philosophy that the president agreed with and someone that he knew, someone who had a lot of qualifications, but wouldn’t create a big distraction for the summer.

JIM LEHRER: Karen, what does your reporting say at this point? I know it’s only — we’re only talking one day here. But about the — is there an effort, a major effort afoot among the Republicans to block this?

KAREN TUMULTY: You know, I am not getting a sense that there is a real appetite for a huge fight here.

Now, it is Washington. It is an election year. There will be some battle. But I think, at this point, it’s one that is primarily aimed at kind of revving up the base on both sides, maybe raising a little money on both sides. But I — most people I have talked to do not expect, say, a filibuster in the Senate.

JIM LEHRER: Let’s go through some of the issues. Do you agree with that, Tom?

TOM GOLDSTEIN: I do. I think that that’s right.


Let’s go through some of the — kind of button issues here that always affect Supreme Court nominations. On Kagan, what is her — what is known about her position, say, on abortion?

TOM GOLDSTEIN: Very little. She hasn’t expressed a personal view either about her own views or the constitutional…

JIM LEHRER: Nothing about Roe v. Wade?

TOM GOLDSTEIN: No. Really, so far as anyone knows, having read — I have read everything that she’s written, I think — what — from talking with people in terms of even teaching her class — there is a memorandum that came out from her time in the domestic policy shop of the Clinton administration advising the president on a compromise about late-term abortion.

That really reflected, I think, the Clinton administration’s approach, one she seemed comfortable with, about being kind of in the center. But it — even that wasn’t about what the Constitution requires. It was a political judgment.

JIM LEHRER: But is there any doubt in anybody’s mind that she’s in favor — she’s pro-choice and would — would vote to uphold Roe v. Wade?

KAREN TUMULTY: The kinds of questions — and Tom can correct me on this — though, that come to the court are not generally yes or no on Roe v. Wade.

They’re — they’re questions that are sort of at the margins of the abortion issue, things, for instance, in recent years about whether minors should have parental consent, those sorts of things. The — the papers that were brought to light today had to do with late-term abortions.

And I think — I don’t know — I think that people think she is essentially pro-choice, but I don’t know that they know how she would rule on these kind of marginal questions.

JIM LEHRER: Can it be possible?

TOM GOLDSTEIN: It is — I think it’s almost impossible to believe that she would be against Roe vs. Wade.


TOM GOLDSTEIN: But — because just think of the jobs that she’s had. She’s gone into two Democratic administrations. The things that she’s talked about, she’s done in a liberal side, not extreme liberal, but on that side of things.

But you couldn’t be more right that really decisions about the minors, about waiting periods and the like that are at the margin of the abortion debate, we don’t know where she would be at. And the administration, like every administration before her, didn’t ask her that question.

JIM LEHRER: Now, the people who have raised questions, members of the Senate, particularly on the Judiciary Committee, they all mentioned her decision when she was dean of the Harvard Law School having to do with military recruiters.

First of all, explain exactly what she did.

KAREN TUMULTY: Well, basically, she briefly barred military recruiters from a facility on the Harvard campus, in protest, essentially, of the don’t ask, don’t tell policy.

You know, this is something that — it is basically the only thing that people have found specifically, I think, in her record to talk about. But…

JIM LEHRER: But she was dean of a law school. She was not…


JIM LEHRER: … wasn’t involved in a legal proceeding, right, as a lawyer?

KAREN TUMULTY: Well, there was in fact a legal proceeding. But, again, I think that at her — you know, this is not something that goes to the larger question of her judicial philosophy.

This is sort of essentially one episode in her career that people are going to probably use to portray her somehow as anti-military.

JIM LEHRER: Anti-military.

What about gay rights? Where does that fit into this?

TOM GOLDSTEIN: Well, this is a question about gay rights and the military.

The policy that was involved applied to all employers. And there, what — what had happened is that Congress passed a law that said you can’t keep the military out because of don’t ask, don’t tell, or we will stop all of your federal funding. So, that would have been $300 million to Harvard.

And Elena Kagan said, when a court of appeals had struck down that law that she applied the rule to the military, the military couldn’t come on campus, and she said in a very personal tone that she really believed in equality, she also explained that the reason she cared so much about this is, she wanted gays to be able to serve in the military. It was a sign of a respect to the military. She wasn’t trying to keep people out of the military.

So, I think that this will play out. It’s an important social issue. It — it does reflect that she cared a lot about discrimination against homosexuals. But she also tried to frame it in terms of her great respect for service.

JIM LEHRER: Do you expect that, Karen, to play out as a big issue when the hearings actually begin, assuming it gets there, everything goes on course here?

KAREN TUMULTY: You know, I think it will be aired, but I think it — it will play out probably pretty quickly.

I think the larger issue is the context under which she is going to serve on the court. She, if she is confirmed, will come to the court at a moment when it is looking at a lot of Obama administration policies and court challenges to them, things like challenges to the new health care law.

And I think that that is really going to be the larger context that people will be looking at her.

JIM LEHRER: The rubber-stamp thing that you mentioned.

KAREN TUMULTY: The rubber-stamp question.


And is that a reasonable expectation, Tom, to expect that the former solicitor general in the Obama administration and former official in the Clinton administration is pretty much going to be in sync with what the Obama administration is going to do on a whole long list of things, or not?


JIM LEHRER: Maybe not. OK.

TOM GOLDSTEIN: Presidents have been disappointed in the past. And they wouldn’t have asked her questions about where she was at on the health care law and that sort of thing.

This is the new twist on judicial activism. People, conservatives in particular, have constrained — complained a lot about people striking down laws. Now the concern is that she might vote to uphold laws. So, it’s really just another way of framing opposition concern about a Democratic nominee.

JIM LEHRER: Now, there’s been not just conservatives who have been — the punditry, as you know, has been everywhere on this in these last 24 hours. But some liberals are supposedly concerned. What is their concern?

KAREN TUMULTY: Well, one of their main concerns is what they saw from her as solicitor general. Again, as Tom says, her public career has always been essentially as an advocate of some administration’s policies, not her personal ones.

But liberals in particular are concerned about some of the cases, particularly in national security, where she has argued for the Obama position, for a really sort of expansive view of the role of the executive.

But I think the larger concern, however, among liberals is that this was essentially a missed opportunity, that — that Obama took a safe choice, a relatively moderate choice, when what they have really been dreaming of is some sort of outspoken, full-throated liberal voice on the court that would essentially be a counterbalance to Antonin Scalia.

JIM LEHRER: Would you agree with those who say that, Tom, Barack Obama, there’s no way in the world he was going to appoint such a full-throated liberal?

TOM GOLDSTEIN: Well, it depends on what we mean.

There are people kind of on the far left that are very serious lawyers and very respected who didn’t get that serious consideration. But the president did, for example, with Diane Wood, a Democratically-appointed judge on the 7th Circuit, took her very, very seriously. And she has ruled on things like abortion, religion cases, race cases and the like. And they took a pass there.

I do think that the administration decided to go with someone who has a reputation for building bridges between left and right. But, still, they’re confident. They know her. And people know her going back to the Clinton administration. They have a general sense that she’s kind of a pragmatic, progressive person who would be on the Supreme Court.


Tom, Karen, thank you both very much.