By R. Jeffrey Smith
Washington Post Staff Writer
Sunday, July 11, 2010; A04
With committee and floor votes beginning this week on the Supreme Court nomination of Elena Kagan, skeptical lawmakers could not resist the opportunity to search for a weak point that might provoke last-minute controversy.
Six Republican senators submitted questions that produced 74 pages of written responses from Kagan. In ritual form, her answers -- released Friday -- were finely sanded to avoid any clamor.
Kagan carefully hewed to the themes she struck at last month's hearings: In cases in which she voiced opinion, she said, it was that of Supreme Court Justice Thurgood Marshall, for whom she once worked.
Asked repeatedly whether her expressions of opinion in memos to Marshall reflected a proclivity for overturning precedent or viewing cases through a policy-minded prism, Kagan answered cautiously that mere disagreement is not enough to warrant overturning a precedent. At the same time, she reaffirmed, the court should properly consider whether a "decision has proved unworkable over time, whether the decision's doctrinal foundations have eroded, or whether the factual circumstances that were critical to the original decision have changed."
Some of the questions pushed pet issues: Sen. Charles E. Grassley (R-Iowa) asked whether she agreed that past Supreme Court decisions related to the First Amendment rights of federal employees had provoked whistleblowers to take their complaints to the news media instead of raising concerns with their superiors. She replied, neutrally, that those decisions were "entitled to stare decisis effect."
Sen. Tom Coburn (R-Okla.) made no headway in eliciting a new statement by Kagan on abortion but asked whether she supported what he said was the view of Mark Tushnet, a professor hired during Kagan's tenure as Harvard Law School dean, that judges should decide cases to "advance the cause of socialism." That left an opening for Kagan to reiterate that judges should use legal sources to decide cases, not "policy or political views."
Sen. Jeff Sessions (R-Ala.) had some new zingers for Kagan, or so he might have thought.
He focused on Kagan's memos, citing her expression of support for reversing a 1984 ruling that set a relatively high threshold for overturning court rulings on the basis of a criminal lawyer's unreasonable behavior, even in death penalty cases. Kagan responded that "this memo indicates that I then agreed" with Marshall's dissent to that ruling but added that she accepts that it is "settled law."
Sessions asked about other memos in which Kagan made clear that she paid close attention, while advising Marshall, to how the court might rule if it accepted certain cases for review. When the justices debated whether to review a 1988 challenge to mandatory drug testing for certain Customs Service employees, Kagan advised Marshall not to take the case because "the facts . . . may militate against a decent result." The majority could easily affirm the broad necessity for such tests when presented with a case involving those dealing with narcotics enforcement, she said.
Kagan also advised Marshall against considering a state court ruling against an illegitimate daughter's claim to her father's estate, saying that "you should wait for a case in which the [petitioner] has clearly gotten screwed."
Pressed by Sessions to explain her desire to help Marshall find such a case, Kagan stepped back from what she called the "colloquial and informal language" of her memo. All she was doing, she said, was advising Marshall that "if he were inclined to consider revisiting [it] . . . he should wait for a case with a more compelling set of facts for his point of view."