Kagan gears up for hearings with practice "murder boards"

Mock session used to cram on topics, practice poise under pressure

Published June 22, 2010 6:46PM (EDT)

For several grueling hours each day, Supreme Court nominee Elena Kagan sits at a witness table, facing a phalanx of questioners grilling her about constitutional law, her views of legal issues and what qualifies her to be a justice. They are not polite.

It's all a rehearsal for Kagan's big performance next week during her confirmation hearings at the Senate Judiciary Committee. The "murder boards" are elaborately planned sessions where Kagan hashes out answers to every conceivable question and practices staying calm and poised during hours of pressure and hot television lights.

About 20 members of President Barack Obama's team play senators, peppering Kagan with tough questions designed to trip her up or elicit an unscripted response. Kagan practices being herself. She works to avoid handing her opposition the 10-second sound bite that could derail her so-far smooth trajectory toward confirmation.

The process is shrouded in secrecy; the White House refuses to describe it. But officials say that White House counsel Bob Bauer's office is in charge of the sessions, which take place in an office building just steps from the West Wing, with Associate Counsel Susan Davies running most of the day-to-day practice.

The questioners, who at various times have included Kagan's pals from academia as well as White House and Justice Department lawyers, are friendly; but the practice sessions themselves are designed to be anything but.

Rachel Brand, a lawyer who helped prepare former President George W. Bush's nominees, Chief Justice John Roberts and Justice Samuel Alito, for their Judiciary hearings, said the subject sits through "tough questions, argumentative questions, annoying questions."

The purpose, she said, "is to ask those hard questions in the nastiest conceivable way, over and over and over, so that the nominee can get any indignation, frustration, outrage, what have you, out of their system in advance so they don't come out at the hearing."

The murder boards also are designed to help Kagan -- the 50-year-old former Harvard Law School dean who was confirmed last year as Obama's solicitor general -- brush up on the subjects she'll be asked about. When she's not rehearsing, White House officials say, Kagan has been spending her time reading and reviewing key cases and legal writings.

"It's a huge cram-course on constitutional and other relevant areas of law," said Ian Millhiser, an analyst at the liberal Center for American Progress who was a legal researcher for another Democratic-aligned group during the confirmation hearings for Obama's first nominee, Justice Sonia Sotomayor.

"No matter how brilliant you are and how much time you've spent dealing with legal issues, there's going to be an important issue out there that you don't know everything about, and that a senator is going to ask you a question on," Millhiser said.

Kagan and Obama's team have plenty of clues about what questions to expect. She spent the five weeks immediately following her nomination May 10 meeting individually with more than 60 senators in private on Capitol Hill. Aides who accompanied her took notes on what was said, in part to help inform Kagan's hearing preparations.

Nominees and White House lawyers also scrutinize transcripts of previous Supreme Court nomination hearings for clues on what the 19 members of the Judiciary Committee typically ask.

Some senators reveal their questions in advance, like giving a nominee an open-book exam.

Sen. Arlen Specter, D-Pa., who voted against confirming Kagan as solicitor general because he said she wouldn't answer important legal questions, has written to her three times and spoken on the Senate floor to broadcast what he will ask this time.

Specter wants to ask whether she would vote to hear a case on the constitutionality of the terrorist surveillance program. He also wants her views on lawsuits brought by Holocaust victims and their heirs to recover World War II-era insurance claims, and suits brought by 9/11 victims. His must-ask list is long.

Kagan herself has written scathingly of the confirmation hearings, calling them a charade in which nominees work hard to evade important questions. Now she is probably practicing effective ways to do precisely that, say students of the process.

Incendiary hearings, like the one Supreme Court Justice Clarence Thomas called a "high-tech lynching" to the face of his inquisitors, are rare. It's in the interest of the nominee's sponsors to make them tedious, and they often succeed at that.

But Roberts noted that while nominees are at the witness stand for as many as 12 hours, if they make one 10-second mistake, it's all anyone will ever know about them, said Benjamin Wittes of the Brookings Institution, who quoted the chief justice in his book "Confirmation Wars."

"That is what the murder boards are about," Wittes said. "They're about making sure that that 12 hours is as boring as possible, and making sure that those 10-second moments that will make them not boring do not happen."

By Julie Hirschfeld Davis

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