Washington Report: Updates From the Capitol

Liberal Dems raise eyebrow on Kagan nomination; Fattah move puts seniority rule in question

Kagan Nomination Raising Concerns Among Liberal Democrats

From the moment Solicitor General Elena Kagan was nominated by President Barack Obama to the U.S. Supreme Court, a mix of both support and criticism has come her way.

Conservatives immediately and predictably carped on the fact that Kagan, 50, has never served on the bench and therefore has no paper trail of rulings. They’ve also suggested that having served in Obama’s administration, she could be biased on certain issues that may come before the court, such as challenges to the healthcare reform bill.

The nomination is “an opportunity for Obama to make sure that his views will be represented in a mirror image on the bench because there’s no judicial record to get an idea of which way she’d lean on issues,” said black conservative commentator Lenny McAllister. “People try to use her experience as dean of Harvard Law School as a template, but that’s not necessarily a parameter of how she’d act as a jurist.”

Rep. Robert Scott (D-Virginia), a member of the House Judiciary Committee and the Congressional Black Caucus, pointed to the irony of criticism about Kagan’s judicial record given that in 1999 the Republican-controlled Senate Judiciary Committee declined to hold a hearing on her nomination by President Bill Clinton to the U.S. Court of Appeals for the District of Columbia Circuit. But he is concerned about her hiring practices while at Harvard and in the Solicitor General’s office, where, critics say, she hired too few blacks, raising concern about her commitment to racial diversity.

Scott and other liberal Democrats also worry that Kagan will be a more conservative jurist than Associate Justice John Paul Stevens, whom she would replace, and that Obama with his two appointments so far will have made the court more conservative than it was when he took office.

“There is no strong advocate on the court articulating a liberal position,” said Scott. “Look back at Plessy v. Ferguson. That eventually became Brown v. Board of Education, so even if you’re losing, you need someone to provide strong dissents.”

Rep. Shelia Jackson Lee (D-Texas), a CBC member who also sits on the House Judiciary Committee, had hoped that Obama would nominate a black woman to replace Stevens, but is heartened by the fact that Kagan clerked for Justice Thurgood Marshall.

“I like the fact that she has clerked for what has to be one of the most renowned fathers of the civil rights movement,” said Jackson Lee. “Marshall knew how to assess the finer points of law to protect the most vulnerable. I can’t imagine that as a young law clerk Kagan didn’t assimilate some of his viewpoints into her legal rationalizing or analysis. That’s very good for us.”

It’s actually still to be determined and over the next several weeks, Kagan will have to answer to black lawmakers and civil rights groups as well as the senators who’ll eventually vote for or against her confirmation.

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