This afternoon, the Senate Judiciary Committee is scheduled to begin its deliberations on the nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court. Like her confirmation hearings, in which Kagan alternately sparred with committee members and joked along with them (see Diane Vacca’s WVFC report), these deliberations will be televised live, to the delight of legal-political junkies everywhere.  With the inevitable delays, it’s less like a World Cup final than like America’s signature sport: a long no-hitter, destined for extra innings.

Not that there’s much suspense about the outcome. The  committee’s most  powerful Republicans have all but ruled out the filibuster, leaving little question that Kagan’s nomination will be forwarded to the full body and that she’ll be confirmed over the next month or so.

What is in play, though, is full-bore partisan politics on both sides, most likely resulting in sound-bite fodder for 2010 and 2012 campaign commercials. Here’s a guide to some of Judiciary’s key players, what we’re likely to see from them in the coming weeks, and the political themes triggered by the Supreme Court.

The Gray Eminences. “I’ll be fair. I always am,” Utah’s Orrin Hatch said genially as the hearings opened, underscoring his image as wise-yet-concerned elder statesman. As the hearings began, it was Hatch who advised Kagan to be discreet about her own politics. Once they were over, though, he declared his opposition to her nomination, saying that her track record at Harvard Law School and in two administrations showed signs of a secret “activist judicial philosophy.” Hatch’s opposition, writes the Christian Science Monitor, sets the tone for other GOP senators to follow in the upcoming votes.

Hatch had signaled his line of thinking early in the hearings when he assailed iconic former Chief Justice Thurgood Marshall, saying “There’s no doubt that he was an activist judge.” He then earnestly questioned how Kagan, as Solicitor General, could have so vigorously defended federal campaign-finance laws during Court deliberations on the Citizens United case.  (That case turned into the 5-4 Roberts Court decision that was decried by every Democratic senator during the hearings — including New York eminence grise Charles Schumer, who called the Citizens United decision “confounding and deeply troubling.” )

Iowa senator Charles Grassley, perhaps the most senior member of the committee since the death of Ted Kennedy, stuck to familiar GOP themes. He pressed Kagan to state her support for recent Court decisions declaring the Second Amendment (the right to keep and bear arms) a “fundamental right” for all Americans, then urged her to do the the same for a 30-year-old decision the little-known 1972 Minnesota case Baker v. Nelson, a precursor to current struggles over same-sex marriage.

The Northeast Cabal. Across the aisle is committee chair Patrick Leahy (D-VT),  who, despite collegial joshing with Hatch and Grassley, made enough passionate statements about Citizens United and other Roberts Court decisions to shoot his next set of commercials. The same was true for Rhode Island’s gentlemanly Sheldon Whitehouse. Regional wild card: Massachusetts’s Scott Brown, who introduced his constituent Kagan at the start of the hearings, but may now come under pressure to fall in line with his fellow Republicans.

Aligned with the Northeast Democrats, philosophically if not geographically, are Wisconsin’s Russ Feingold and Minnesota’s two senators, Amy Klobuchar and Al Franken. During the hearings, they sought reassurance from Kagan on issues of civil liberties and executive power, while racking up TV time criticizing the Roberts Court on issues ranging from guns to mandatory-arbitration clauses. “Why are we no longer trusting in juries?” Franken asked.

The Southern Gentlemen. Much attention is focusing on South Carolina’s Lindsey Graham, often hailed as the lone Republican “maverick” (now that John McCain has disavowed the title). He remains one of the only possible Republican votes in favor of Kagan’s nomination. Still, while Graham giggled with Kagan on the first day of her hearings, he socked away plenty of B-roll for future campaign commercials about the War on Terror, asking Kagan “You know we’re at war, right?” and criticizing her past policies at on military recruiting Harvard Law School.

Similar commercials could conceivably be produced for Alabama’s Jeff Sessions, seen in the group photo above gazing into the camera lens. Sessions signaled his opposition as the hearings started, telling reporters that he “couldn’t rule out” a filibuster. After taking his seemingly obligatory swipe at  “activist judge” Marshall, Sessions  spent an extensive amount of time grilling Kagan about Harvard Law and recruiting, telling her that she had “demeaned” the military. His follow-up questions were extensive.

As for Texas senator John Cornyn, he did elicit from Kagan her fullest statement of judicial philosophy: that unlike Chief Justice John Roberts, she doesn’t see the role of a Justice as simply calling “balls and strikes,” but as using judgments to evaluate complex cases.  The rest of Cornyn’s questioning focused on such GOP themes as the Second Amendment and the new-old kid on the block, the Commerce Clause, a sensitive issue for Tea Party voters convinced that President Obama aims to reshape the U.S. economy with it.

The rise of the West. Just above Texas, of course, is Oklahoma, and its senator Tom Coburn (left) struck a number of Tea Party chords, longing audibly for the time “years ago, when things weren’t like this.” Arizona’s Jon Kyl, following Orrin Hatch’s lead, took his own shot at Thurgood Marshall (“might be the epitome of a results-oriented judge”). He went on to review, slowly, cases in which the Roberts Court has ruled in favor of major corporations, citing them  as good examples of the Constitution at work. However, even further West is one of Kagan’s strongest supporters, Dianne Feinstein (right), whose future commercials might nonetheless feature her pressing Kagan on abortion rights or the limits of executive power.

As we prepare to go online with this story, the wires report that the games have begun: Sessions will ask for the hearings to be delayed for a week, as allowed by Senate rules.  Stay tuned, and keep your eyes peeled for campaign commercials with the Supreme Court as a backdrop.

Start the conversation

This site uses Akismet to reduce spam. Learn how your comment data is processed.