Capitol Hill Briefing

Kagan likely to face 2 lines of questioning in second day with senators

By Perry Bacon Jr.
Washington Post Staff Writer
Thursday, May 13, 2010; 12:22 PM

On Capitol Hill today: Day Two of the Elena Kagan Tour, and more debate over what one senator dubbed "the Kagan Standard."

Kagan, whom President Obama nominated for the Supreme Court on Monday, will spend Thursday meeting with seven members of the Senate -- five Democrats and a pair of Republicans, Susan Collins (Maine) and Scott Brown (Mass.). The 30-minute sessions, following eight on Wednesday, are unlikely to be Kagan's final time on Capitol Hill before her confirmation hearings: Sonia Sotomayor met the majority of the senators in one-on-one meetings in advance of her confirmation last year.

If Wednesday's meetings are any indication, Kagan will face two kinds of questions. Republicans are pressing Kagan, currently the U.S. solicitor general, on themes they have laid out since her nomination, particularly suggesting she might be too liberal of a judge (a "judicial activist" in their terms) and questioning her lack of experience as an appellate judge.

Democrats, while nearly all likely to back her when the hearings are over, are politely jabbing Kagan for her 1995 article casting the confirmation process as a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Back then, Kagan called for a more direct discussion of nominees' views on specific legal issues, an approach the recent appointees of both President George W. Bush and Obama have eschewed.

"I asked her about it, and I said, 'You know, you're going to have to live by the Kagan standard,' which you established," said Sen. Richard Durbin (D-Ill.), a member of the Judiciary Committee who met with Kagan Wednesday. "She said, 'Well, the world looks a little different from this vantage point.' "

"That particular article is one that reflects some of the frustration of sitting on this side of the table, and asking straightforward questions, and being told, 'Well, I can't give you an answer because then I'd be suggesting how I would rule from the bench,' " Durbin later said in an interview on MSNBC. "So there was a frustration reflected in that. And Elena Kagan is going to have to strike the right balance where people think she's being honest and forthcoming."

Sen. Dianne Feinstein (D-Calif.), another member of the committee, said she told Kagan: "I trust you are going to be a paragon of exactly the opposite of what you wrote about."

Kagan's response? "We both laughed," Feinstein said.

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