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As Kagan confirmation hearings begin, Republicans struggle for line of attack

By Anne E. Kornblut and Paul Kane
Washington Post Staff Writer
Monday, June 28, 2010; A01

For weeks leading up to the start of Elena Kagan's Senate confirmation hearings Monday, Republicans have struggled to find a compelling line of attack to take against the Supreme Court nominee. But their efforts to wield an effective cudgel against President Obama's second nomination to the country's highest court have largely failed.

In a month of oil spills and Afghan tumult, the Kagan nomination is one effort that has gone seamlessly for the White House. In part, participants say, that is precisely because it has been overshadowed by a flood of other events that have consumed Congress and kept Republicans from mounting a more muscular front against her.

But it is also a measure of how skilled operatives have become at managing the process -- and choosing nominees who are notable in part for their political blandness.

Of the efforts to fill the four vacancies in recent years, none have produced the kind of fireworks that made the nomination of Clarence Thomas so explosive or that led to the rejection of Robert H. Bork. Initial hiccups -- Samuel A. Alito Jr.'s conservative record, Sonia Sotomayor's comment extolling the virtues of a "wise Latina" -- have inevitably given way to confirmation. And in Kagan's case, there has not been a stumble of the sort that would slow down her nomination.

Republicans have tried to make an issue of her years as law dean at Harvard and her lack of judicial experience. And in recent days, conservatives have seized on a new, albeit arcane, objection: Kagan's praise for a former president of the Israeli Supreme Court known for his activist approach to the law.

"If people understood that an American Supreme Court nominee was going to follow the example of Barak, there would be grave misgivings and probably a refusal to confirm," Bork said last week in a conference call with reporters that was billed as a potential turning point in the nomination process.

Never mind that most Americans have never heard of Aharon Barak, the Israeli jurist to whom Bork was referring (and whose effectiveness as a political weapon is diminished further because his name resembles the president's). Or that Bork was rejected for the court in 1987 and has served as the GOP's go-to judicial scold ever since.

Republicans, privately frustrated, acknowledge that they have searched without luck for a controversy to pin on Kagan, Obama's solicitor general, since she was nominated in early May. "There's been so little oxygen for this," said one senior Republican aide.

Muted attention

In part, the attention has been muted because Obama has not chosen outspoken liberals in either of his first two opportunities to influence the makeup of the court. Kagan, who would replace Justice John Paul Stevens, would not tilt the court's ideological balance. So the stakes are lower than if she had been picked to replace a conservative, participants on both sides said.

She is also an especially elusive target: a politically savvy operator who has no record of judicial rulings and has spent much of her career carefully positioning herself for the next step. A chorus of conservative legal scholars stood ready to defend her when she was picked, and her bipartisan alliances -- and lack of apparent legal or personal skeletons -- factored into her choice as the nominee.

That is not to say that Republicans have given up. Several senators on the Judiciary Committee have pushed hard to point out their differences with her views.

"I think her nomination has real problems that need to be examined," Sen. Jeff Sessions (Ala.), the ranking Republican on the committee, said Sunday on CBS's "Face the Nation." "I believe she's entitled to a fair hearing and a chance to respond, but this nominee has a very thin record legally -- never tried a case, never argued before a jury, only had her first appearance in the appellate courts a year ago. She just is not the kind of nominee you would normally expect to have."

A few days earlier, Sessions had said that the lead-up to the hearings was probably "distracted this week" because there were "so many things happening."

Yet Senate Majority Leader Harry M. Reid (D-Nev.) said he had seen nothing to suggest that the hearings would be difficult, let alone prove Kagan's undoing. He said that at this point in Sotomayor's confirmation process, her potentially problematic issues had already surfaced.

"I haven't seen anything on Kagan," Reid said Friday.

Recent confirmation hearings have evolved into largely rote performances by nominees coached by the White House and Justice Department staffs to avoid revealing any views that could provoke controversy. In Kagan's case, conservatives and liberals off Capitol Hill have said they hope that senators will probe more deeply -- and that the nominee will be more forthcoming -- given the absence of a judicial record to offer significant clues to her thinking.

Still, Marge Baker, executive director of the liberal People for the American Way, said: "I don't think anybody believes that, in the end, this is going to be a difficult confirmation. . . . It feels a little to me like they're going through the motions."

The news cycle

One problem for Kagan's critics has been the news cycle, which has been dominated by coverage of the Gulf of Mexico oil spill and then, last week, the firing of Gen. Stanley A. McChrystal as commander of the Afghan war.

At the start of a White House conference call with reporters Friday, senior adviser David Axelrod joked that the news in Washington had been "rather dull" of late. "We've scheduled these Supreme Court hearings just to enliven the festivities," Axelrod said.

The Kagan festivities will have competition again as confirmation hearings get underway Tuesday for Gen. David H. Petraeus, nominated to replace McChrystal in Afghanistan.

Her confirmation is seen as highly likely, given the makeup of the Judiciary Committee -- 12 Democrats, seven Republicans -- and the 59 to 41 edge that the Democratic caucus holds in the Senate.

Some Republicans have declined to rule out a filibuster, and some have noted that Kagan received just 61 votes in her confirmation as solicitor general last year. But four Democrats missed that vote. In a move that Democratic aides suggested shows her political instincts, Kagan asked Sens. John F. Kerry (D) and Scott Brown (R) of Massachusetts to introduce her before she speaks Monday. Brown, who became a conservative hero in January by winning the seat of the late Sen. Edward M. Kennedy (D), has shown moderate leanings in his votes, and giving him that spotlight Monday could make it more difficult to vote against her.

Kagan's nomination might come in jeopardy if she slips up at the hearings or new information about her background emerges at them. But even Republicans do not expect that to happen: She is a skilled speaker, accustomed to parrying with sharp-tongued Supreme Court justices.

Monday's session will be restricted to opening statements by the 19 committee members, Kerry's and Brown's introductions, and Kagan's remarks. The question-and-answer sessions will begin Tuesday morning, possibly running through Thursday. If all goes well for Kagan, the committee will formally take up her nomination in mid-July, after the Senate returns from its Fourth of July recess. A final floor vote is expected by the end of July.

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