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Kagan expected to be confirmed to Supreme Court with little Republican support

The Senate Judiciary Committee continues confirmation hearings for Kagan, who pledged in prepared remarks to support judicial restraint and a "modest" role for the high court.

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By Paul Kane and Amy Goldstein
Washington Post Staff Writer
Friday, July 2, 2010

Solicitor General Elena Kagan's critics failed to deliver a striking blow to her nomination to the Supreme Court, making her confirmation a near-certainty later this month, but she may receive scant bipartisan support, according to senators and aides involved in this week's confirmation hearings.

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The sessions before the Senate Judiciary Committee concluded Thursday with testimony from outside advocates and legal experts, following Kagan's testimony earlier in the week. The panel will vote on the nomination after the Senate returns from its week-long Fourth of July break, sending her nomination to the full chamber in late July.

Senior Republican aides said there appeared to be little desire to try to block her nomination through a filibuster. But the nominee's critics -- including one Senate Democrat and some liberal civil rights groups -- said they found her testimony lacking in detail, as she avoided explicitly revealing her views, an approach followed in confirmation hearings by her predecessors over nearly two decades.

"So far it's been a winning hand, but it's not been good for the country, the court or the Constitution, and certainly not the Congress," said Sen. Arlen Specter (D-Pa.), who opposed Kagan's confirmation as solicitor general 16 months ago when he was the committee's ranking Republican.

Specter, who may again oppose Kagan, said in an interview Thursday that the nominee uttered "pure prepared pabulum that comes right out of the White House murder boards." He said he was particularly upset because, in a 1995 law review article, Kagan lambasted the confirmation process as "vapid" because of the lack of specificity in nominees' answers.

Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, said senators did not ask the nominee enough questions to try to elicit her views on immigration and other issues that are significant to Latinos. He said that his "general inclination" is to recommend that his group take no position on Kagan. "It means the record is pretty much devoid of strong indication of . . . [her] views."

Last August, Sonia Sotomayor won 68 votes to be confirmed to the court, including those of nine Republicans, a level of support that appears unlikely for Kagan. Just seven Republicans voted for her confirmation as solicitor general in March 2009; Democrats and Republicans expect few, if any, senators who opposed that nomination to a lower post to support her lifetime appointment to the nation's highest court.

Among the Republicans who voted 'aye' were three conservatives -- Sens. Tom Coburn (Okal.), Orrin G. Hatch (Utah) and Jon Kyl (Ariz.) -- who often support executive branch nominees out of deference to presidential hiring. The three were some of Kagan's toughest interrogators this week.

On the Judiciary Committee, Sen. Lindsey O. Graham (S.C.), who missed the solicitor general confirmation vote but did vote to confirm Sotomayor, is considered the only Republican who may support Kagan. When her nomination reaches the Senate floor, Maine's Republican senators, Susan Collins and Olympia J. Snowe, are considered likely to support Kagan, who would be the fourth woman to serve on the Supreme Court.

Another blow to potential GOP support came Thursday when the National Rifle Association came out against Kagan's confirmation. The Brady Campaign to Prevent Gun Violence announced its support.

At the hearings, several of Kagan's former Harvard Law School colleagues praised her time there as a professor and dean -- including Jack Goldsmith, a prominent conservative hired during her tenure.

GOP witnesses included current and retired members of the military who castigated Kagan's handling of military recruiters while she was dean of the law school. The dispute pitted a law that requires universities to allow recruiters or risk forfeiting federal aid against a ban on gays serving openly in the armed forces, a violation of Harvard's anti-discrimination policy.

The witnesses lambasted Kagan's testimony that she had not diminished recruiters' access to students, because a student club of military veterans sponsored the recruiting even when the law school's career services office did not. "What she said to the military was, in effect, 'Sure, you're welcome here, but would you be so kind as to use the back door by the garbage? You don't mind eating in the kitchen, do you?' " Capt. Flagg Youngblood said.

The current president of Harvard Law's student group of veterans, however, countered that she had fostered "a pro-military environment" on campus.


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