The Juice

The Kagan hearings: Drama at the staff level is unseen but intense

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.
By Mary Ann Akers
Washington Post Staff Writer
Monday, June 28, 2010

When Elena Kagan's Supreme Court nomination showdown kicks off Monday in the Senate Judiciary Committee, the ritualistic partisan jousting will begin. But on the sidelines, away from the cameras, a more intense match will play out between the top Democratic and Republican staffers on the panel.

Bruce Cohen, 60, is a feisty and earnest old pro who has been the top Democratic aide on the Judiciary Committee for well over a decade. His counterpart, Brian Benczkowski, 40, is a rookie, at least on this side of the dais.

Benczkowski (pronounced: bench-KOW-skee) joined the committee last year after serving as chief of staff to then-Attorney General Michael Mukasey. Benczkowski had previously been head of legislative affairs at the Department of Justice in the George W. Bush administration. While there, he prepped scores of GOP judicial nominees to answer questions before the Judiciary panel.

Now he's helping to prepare senators -- namely Sen. Jeff Sessions of Alabama, the No. 1 Republican on the panel -- to ask the tough questions.

Bench, as he's known to friends, acknowledges that Supreme Court nomination hearings largely have become scripted political theater. But still, he says, there could be a surprise or two in store that "get to the point that is of concern to Republicans, that [Kagan has] been a political lawyer and is she going to carry that political lawyering onto the court."

"We've turned over every stone we could possibly turn over," Benczkowski says. "We've covered just about every corner of her record that we could get our hands on."

Bench and his team have filled the GOP arsenal with memos and e-mails from Kagan's days in the Clinton White House and as a clerk to Supreme Court Justice Thurgood Marshall, on issues that include gun rights, partial-birth abortion and state-funded elective abortions for prisoners.

Kagan's is the second Supreme Court nomination on which Benczkowski is point man, and Cohen's seventh. Not only does Cohen have more raw experience promoting and fighting nominees to the high court, he has a fire in the belly few can match, allies and old adversaries say.

"It can be a grind for the top staffer for the Republicans on the Judiciary Committee to, day after day, go up against one of the most determined staffers on Capitol Hill," says Manus Cooney, the former top Republican aide on Judiciary who sparred, albeit congenially, with Cohen. "Bruce brings a litigator's doggedness to his work. You have to respect his abilities, raw brainpower and tenacity."

Cohen also has the unique perspective of someone who has worked on both sides of the aisle; he worked for Sen. Arlen Specter of Pennsylvania in 1981 and 1982 when Specter was a Republican.

Describing himself as "just staff," "too busy" and "not into self-promotion," Cohen declined to be interviewed. Senate Judiciary Chairman Patrick Leahy (D-Vt.) praised his longtime counsel as an "extraordinary talent" and said, "As a lawyer, I would treasure being in a law office with someone this good."

Mukasey, who handpicked Benczkowski to be his chief of staff during the last 14 months of the Bush administration, says if anyone can go head-to-head with Cohen, it's Benczkowski.

"It's kind of like asking whether the master bullfighter can deal with that mean-looking bull. Usually it's the bull that gets the worst of it," Mukasey said. (He did not specify who is the bull and who is the bullfighter in this analogy.)

Mukasey, a former federal judge who practices corporate litigation in New York, describes Benczkowski as measured and someone who "can see around corners." (A big part of Benczkowski's job at DOJ was helping Mukasey mend the agency's beleaguered reputation with Congress after the U.S. attorneys firing scandal and former attorney general Alberto Gonzales's abysmal performance testifying before Judiciary.)

Benczkowski's diplomatic, solution-oriented style stands in sharp contrast to that of the panel's chief GOP counsel, William Smith, who last year wrote a blog post equating gay marriage with pedophilia. Smith has not played a leading role in preparing for the Kagan hearings, which may be dominated by discussion of Kagan's decision while dean of Harvard Law School not to sponsor military recruiters for a brief period because the school's anti-discrimination policy conflicted with the military's "don't ask, don't tell" policy for gay service members.

Instead, the panel's deputy chief of staff, Matt Miner, a former federal prosecutor in Montgomery, Ala., has assisted Benczkowski more closely in the Kagan nomination process.

Perhaps the second-biggest Democratic player behind the scenes on the Senate Judiciary Committee is Ed Pagano, a longtime aide and confidant to Leahy. Pagano, who at 6 feet, 8 inches tall is only 5 inches taller than the senator, went to the University of Vermont with Leahy's son in the 1980s. (Pagano played center on Vermont's basketball team.) Pagano has also served as Leahy's senior counsel on the Judiciary Committee.

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