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Republicans to Focus on Whether Elena Kagan Would be a Judicial Activist

5 years ago
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Republicans on the Senate Judiciary Committee made clear Sunday that they will use confirmation hearings for Supreme Court nominee Elena Kagan to zero in on concerns that she would be a judicial activist and bring to the court an "expansionist" view of government.

The most serious objections were voiced by Alabama Sen. Jeff Sessions, the ranking Republican on the committee, who also targeted Kagan's lack of judicial background. Kagan has never been a federal judge and, aside from her tenure as Dean of Harvard's Law School and a clerk for the late Justice Thurgood Marshall, her major positions have been in Democratic administrations -- as President Obama's Solicitor General and as a legal adviser to former President Bill Clinton.

The hearings begin Monday.

Sessions said on CBS' Face the Nation, "She has the least experience of any nominee at least in the last 50 years. And so I think that raises questions."

Patrick Leahy, Jeff Sessions"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," he said. "She just is not the kind of nominee you would normally expect to have. Of course never been a judge. And so this raises questions because her political instincts have been strong. She's been aggressive on issue after issue from the liberal side of the political issues."

Saying "this is a confirmation, not a coronation," Sessions added, "The American people are concerned about their courts. They're concerned about a growing expansive government that seems to be beyond anything they've ever seen before. And they'd like to know what their judges might have to do about it."

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Another GOP panel member, South Carolina Sen. Lindsey Graham, said on Fox News Sunday that "I can accept that she's liberal" but expressed concern about statements she has made praising Aharon Barak, a retired president of the Supreme Court of Israel, who has been depicted by conservative critics as a proponent of judicial activism.

Introducing Barak at an awards ceremony at Harvard, Kagan described him as "the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice."

Graham said, "The one thing that bugs me about her is that when she embraces Judge Barak from Israel and the way he thinks and the way he writes as her hero, that to me is embracing liberal activism, not mainstream liberalism, and she's going to have to explain that to me and other members of the committee."

Asked whether it would rise to the kind of extraordinary circumstance that would lead Republicans to try and block the nomination if her answers weren't satisfactory, Graham said, "I don't know if it rises to that. It will be a problem for her getting my vote and it would be a problem for a lot of moderate Democrats."

Democratic members of the committee dismissed objections about Kagan's lack of judicial experience.

California Sen. Dianne Feinstein said on Fox that it was "refreshing to bring in someone ... with her background, which is the background of regular people, a young woman who has exceeded herself, magna cum laude, summa cum laude, associate domestic policy adviser in the White House, solicitor general of the United States."

On CBS, Senate Judiciary Committee Chairman Patrick Leahy said, "It's funny talking about not being a judge. Of course up until recent years, almost half the nominees, members of the Supreme Court, have not been judges. Bill Rehnquist who became chief justice, William Rehnquist was not a judge. He came from the Nixon administration to go on to the Supreme Court."

Rehnquist had been an assistant Attorney General in the Nixon Administration before being nominated to the court.

Leahy added, "I told President Obama this, that it's reached the point that, if he had nominated Moses the law giver, some would have said we can't have him because, among other things, he hasn't produced a birth certificate."

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