President Obama’s nomination of Elena Kagan to the Supreme Court seat is elevating touchy social issues in an election year, just as the tea party is showing how volatile and unpredictable the political landscape has become.
Any Supreme Court confirmation battle stirs a pot of issues important to conservative and liberal activists. Kagan can expect to be grilled about abortion, privacy, property rights, gun control and treatment of terrorist suspects.
The nominee is embarking on her quest for Senate confirmation with a strong presumption of success, so far not encountering any threat of an all-out election-year battle from Republicans. Rather, her Republican critics are making clear they will question the 50-year-old solicitor general about her experience, her decision as dean of the Harvard Law School to ban military recruiters from campus and her ability to rule objectively on cases involving the Obama administration.
In a widely circulated 2003 memo, Kagan blasted the military’s “Don’t Ask, Don’t Tell” policy for gay soldiers as “a moral injustice of the first order.”
Kagan was explaining to students and faculty why military recruiters were allowed on campus again after almost 25 years of being banned from the law school’s main recruitment office.
She said that under a federal law known as the Solomon Amendment, the university risked jeopardizing hundreds of millions of dollars in federal funding unless the school helped recruiters. The law allows the government to deny federal grants to schools that prohibit military recruitment on campus.
The following year, after a federal appeals court struck down the law as unconstitutional, Kagan re-imposed a ban on recruiters — a move that is now expected to be used as “anti-military” fodder by Republicans opposed to her confirmation to the U.S. Supreme Court. The issue was used against her during her confirmation hearing last year for her current post as U.S. solicitor general.
Robert Levy, chairman of the Cato Institute’s board of directors, agreed that Kagan is going to have to explain her position in that case.
“She wasn’t one of the strongest advocates,” Levy said. “But she was certainly in the camp.”
But former Harvard Law Dean Robert Clark, Kagan’s predecessor, called it “foolish” to criticize Kagan on the recruitment issue.
In an op-ed piece in The Wall Street Journal Tuesday, Clark said that when Kagan was named dean, she continued a policy he started the year before, when he began allowing the military to recruit through the school’s career services office again following a threat by the federal government to cut off research funding at Harvard.
Clark said Kagan wrote a public memo stating her objection to “Don’t Ask, Don’t Tell” and “expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.”
Kagan re-imposed the ban on recruiting only after the appeals court struck down the Solomon Amendment. Within months, she lifted the ban when the Supreme Court overturned the appeals court.
“Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military,” Clark wrote. “Quite the opposite is true.”
What’s different from last year’s rather smooth confirmation process for Sonia Sotomayor is that a national election is much closer, and the tea party has revealed a ferocity on the political right that has toppled high-level Republicans in two states and now seeks more.
The Kagan choice especially causes problems for two veteran senators, Democrat Arlen Specter and Republican Orrin Hatch. Both are now trying to explain earlier votes for or against her confirmation as solicitor general.
To be sure, jobs and the economy will dominate the fall elections for Congress and dozens of governors and state legislatures. But social issues, which gain prominence during judicial debates, could spell the difference in at least a few tight races, perhaps more.
These issues are particularly important to conservative and liberal activists, the motivated voters who can have an especially large impact because they turn out even in non-presidential election years.
The candidates most immediately affected will be the 25 senators seeking re-election on Nov. 2, which probably will fall a couple of months after the Senate votes to confirm or reject Kagan. Barring a bombshell revelation, her confirmation seems likely. Democrats control 59 of the 100 Senate votes.
The hottest seat may belong to Specter, the Republican-turned-Democrat in Pennsylvania who is now battling hard for the nomination for a sixth six-year term.
In March 2009, Specter was one of 31 GOP senators who voted against Kagan’s confirmation as solicitor general. Now he’s courting liberal voters likely to turn out for Tuesday’s primary. His opponent, Rep. Joe Sestak, portrays himself as the bona-fide Democrat in the race.
Sestak wasted no time Monday reminding Pennsylvania Democrats that Specter voted against Kagan earlier.
Sestak predicted that Specter will “backtrack” from that vote to woo liberal primary voters.
Specter certainly left that door open. He said he voted against Kagan as solicitor general “because she wouldn’t answer basic questions about her standards for handling that job.” The solicitor general’s post is “distinctly different” from a Supreme Court seat, Specter said, adding that he has “an open mind about her nomination.”