Questions for Kagan

Tuesday, June 29, 2010; A04

On the opening day of confirmation hearings, Democrats and Republicans on the Senate Judiciary Committee laid out central themes in the questioning of Supreme Court nominee Elena Kagan. Senators will begin asking their questions Tuesday morning. Here are a few of the highlights:

Does Kagan have the right job experience?

Democrat

"The biggest criticism I've seen out there is that you've never been a judge. Frankly, I find this refreshing. The Roberts court is the first Supreme Court in history to be comprised entirely of former federal courts of appeals judges. Throughout the history of the court, over one-third of the justices -- 38 out of 111 -- have had no prior judicial experience."

-- Sen. Dianne Feinstein (Calif.)

Republican

"Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it's not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years."

-- Sen. Jeff Sessions (Ala.)

Is the current Supreme Court "activist," and how would she fit in?

Democrat

"We need a justice who can create moderate majorities on this immoderate Supreme Court. I'm going to be blunt about this. We have a highly fractured court with an often rarified way of approaching the law. The rightward shift of the court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens. In decision after decision, this court bends the law to suit an ideology. Judicial activism now has a new guise: judicial activism to pull the country to the right."

-- Sen. Charles E. Schumer (N.Y.)

Republican

"Throughout her career, Ms. Kagan has associated herself with well-known activist judges who have used their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing that judge's preferred social policies and agendas. She clerked for Judge [Abner] Mikva and Justice [Thurgood] Marshall, each a well-known activist, and she has called Israeli Judge Aharon Barak, who has been described as the most activist judge in the world, her hero."

-- Sessions

How liberal is she?

Democrat

"As dean of the Harvard Law School, your efforts to reach out to conservative . . . faculty and students are well documented. Professor [Charles] Fried told the story, which I have recounted, about your speech to the Federalist Society in which you opened by saying, "I love the Federalist Society, but you are not my people." Well, they . . . made T-shirts that they wore around the campus saying, "I love the Federalist Society," with your name, Elena Kagan, below that. But it's an indication of a friendship and an effort to reach out, even to those whose opinion you might not share."

-- Sen. Richard J. Durbin (Ill.)

Republican

"The fact that you've embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that's just America. . . . What did I expect from President Obama? Just about what I'm getting. . . . So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge."

-- Sen. Lindsey O. Graham (S.C.)