Washington Report: Updates From the Capitol

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.

Fattah’s Plight for Head of Committee May Devalue Seniority System

Could Rep. Chaka Fattah‘s attempt to leap frog to the top of the House Appropriations Committee weaken the Congressional Black Caucus’s power? Last week the Philadelphia lawmaker announced plans to run for the chair of the powerful spending panel–in spite of the fact that he ranks 21st on its seniority roster.

But the CBC also is heavily invested in the seniority system that has enabled them to rise to the top of three committees and 18 subcommittees. Even when their party was in the minority, they still wielded influence on legislation based on seniority.

Rep. Bennie Thompson (D-Mississippi), who chairs the House Committee on Homeland Security, said that while he respects the right of Fattah and every member to pursue such leadership positions, the seniority system has been of significant benefit to the CBC.

If it’s ignored, he added, “You run the risk of people wanting to do away with it and to say, we didn’t follow it with that race and therefore we ought to throw it out.”

Fattah said that he, too, is a “totally a supporter and beneficiary” of the seniority system and noted that he’s poised to lead the panel’s Commerce, Justice, Science, and Related Agencies subcommittee because its top two members will not return in the next Congress. But he’s also unwilling to give up what is gearing up to become a battle between himself and Rep. Norm Dicks (D-Washington), the committee’s number two member.

“I’m not a freshman and have been here 16 years. I’m offering myself as a candidate, but I’m going to live with the result of the decision of the entire [Democratic] caucus,” said Fattah. He pointed to the seniority rule being broken on Appropriations and most recently when fellow CBC member Rep. Charles Rangel (D-New York) was forced to give up his Ways and Means gavel. And he’s right, but his argument is weakened by the fact that Dicks is neither in fragile health or prone to sparking controversy as was the case in those situations.

What Washington Will Be Talking About Next Week

The House Financial Services Committee will hold a hearing on Tuesday, May 18, titled Initiatives to Promote Small Business Lending, Jobs and Economic Growth. Chairman Barney

Frank (D-Massachusetts) says that the resulting bill, which he plans to mark up immediately after the hearing, will make “a pile of money” available to community banks, some of which have had capital issues, for the specific purpose of lending to small businesses. It is a big Obama administration initiative that is similar to the program to use TARP funds for community bank lending but a different funding source, Frank said.

May 18 also is Super Senate Tuesday and most political observers will be watching and engaging in obstreperous debate over primary races in 10 states. Voters’ choices will be used as a barometer for November and could also provide insights on whether 2010 will be the year of the anti-incumbent or anti-Democrat.

In some races, prominent incumbents like Sen. Blanche Lincoln (D-Arkansas), Sen. John McCain (R-Arizona) and Pennsylvania Sen. Arlen Specter, who switched last year from Republican to Democrat, are fighting for their political lives. These and other states also will have competitive state and local races this year, have significant minority populations who can play an important role in their outcomes on Tuesday and again in November.

The House Judiciary Committee is holding a hearing on racial profiling and the use of Suspect Classifications in law enforcement policy on May 19.