Kagan's Experience, Harvard Ties Draw Scrutiny in Confirmation Hearing

On the first day of a confirmation process that promises to prominently feature her time as dean of Harvard Law School, Supreme Court nominee Elena Kagan appeared before the Judiciary Committee Monday and promised that, if confirmed, she would judge each case “impartially."

Kagan, who has been nominated to replace John Paul Stevens on the bench, faced scrutiny Monday over her lack of formal judicial experience—an aspect for which she also received criticism during the confirmation process for her current position as solicitor general.

“Ms. Kagan has less real legal experience of any nominee in at least fifty years. It’s not just that she has never been a judge,” said Sen. Jeff Sessions, an Alabama Republican and the ranking member of the minority on the committee. “She has barely practiced law, and not with the intensity and duration from which real understanding occurs.”

During Monday's confirmation process, senators from both sides of the aisle raised questions about the nature of her judicial philosophy given the lack of a so-called “paper trail.”

“We have less evidence about what sort of judge you will be than on any nominee in recent memory,” said Sen. Herb H. Kohl, a Wisconsin Democrat. “Your judicial philosophy is almost invisible to us.”

Republican critics of Kagan are likely to seize on her decision while dean to ban military recruiters from the school’s official recruiting facilities, a move that may place her time at the Law School in the cross hairs during this week’s questioning.

“Her tenure in the academy was marred, in my view, by her decision to punish the military, and would be recruits, for a policy—‘Don’t Ask, Don’t Tell’ and the Solomon amendment—that was enacted by members of Congress and signed into law by President Clinton,” said Jon Kyl, an Arizona Republican.

Kagan has drawn widespread praise for her tenure as Dean during which she laid to rest the school’s long running ideological battles and healed a fractious faculty. But progress also came at a cost—her ambitious agenda for the Law School resulted in a sometimes fractious relationship with her staff.

But a wildly successful fundraising campaign, an expanded and re-energized faculty, and a happier student body have firmly cemented her as one of the school’s most loved deans in recent memory.

With the recent release of e-mails from her days as White House lawyer during the Clinton administration, Kagan’s political experience has garnered increased attention with many of her detractors arguing that she would bring an inappropriately political agenda to the Supreme Court.

The Clinton era e-mails showed a side of Kagan that had previously been hidden from public view and shedded light on Kagan’s deft ability to navigate the often treacherous waters between the White House and Congress. She was intimately involved in some of the biggest political fights of the time, including tobacco legislation and welfare reform.

Kagan, it seems, was a tough and able political operative—something that Chuck E. Grassley, an Iowa Republican, was quick to seize upon during Monday's proceedings.

"Your relatively thin record clearly shows that you've been a political lawyer,” he said. “Your papers from the Clinton Library have been described as—and these aren't my words—a flare for the political and a flare for political tactics.”

The shadow of former Justice Thurgood Marshall—the liberal icon whom Kagan clerked for—loomed large over the hearing as Republicans drew frequent comparisons between Kagan and the justice.

On a day when every member of the Senate Committee played homage to the passing of Sen. Robert C. Byrd, Richard J. Durbin, the Illinois Democrat, defended Marshall’s—and by association Kagan’s—record.

“America is a better nation because of the tenacity, integrity and values of Thurgood Marshall,” he said. “And I say thank God."

Kagan was flanked by friends and family during the hearing Monday, including the current Harvard Law School Dean Martha L. Minow, who has been a vocal supporter of her predecessor's nomination, recently signing a letter along with several other prominent law school deans in support of Kagan.

Minow could not be reached for comment on Monday.

If confirmed, Kagan would be the fourth woman to serve on the court, and the presence of three women on the court would be the largest number to serve at one time. Her confirmation would also result in the first court without a Protestant on the bench.

—Staff writer Elias J. Groll can be reached at egroll@fas.harvard.edu.