Sessions: Kagan may be outside legal mainstream

If she is, says Jeff Sessions, "she should not be confirmed."

Published June 28, 2010 12:22PM (EDT)

The ranking Republican on the Senate panel reviewing Elena Kagan's Supreme Court nomination says he hopes there won't be a filibuster.

Alabama's Sen. Jeff Sessions tells ABC's "Good Morning America" that a critical question involving Kagan is whether she would be driven by political ideology on the high court -- and whether she is "outside the mainstream" of legal thinking.

If that were true, said Sessions, "she should not be confirmed."

Senate Judiciary Committee Chairman Patrick Leahy said Kagan will be approved "with a lot of votes." The Vermont Democrat said her lack of judicial experience is not an issue, citing Earl Warren, Hugo Black and Robert Jackson as leading justices who had no previous bench time before donning the robes.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

WASHINGTON (AP) -- Elena Kagan will be making the argument of her life on Monday when she faces a Senate panel on her confirmation to the Supreme Court.

Kagan's chances are bright as she heads into a marathon week of high-pressure vetting before the Senate Judiciary Committee, pressing to portray herself as a mainstream, impartial addition to the court. She's set to break weeks of public silence Monday afternoon in sworn testimony before the panel.

Democrats have more than enough votes to confirm her. Republicans have shown no inclination to try to block such a vote, although some conservative interest groups are urging them in increasingly vocal ways to do so.

The GOP is set to grill Kagan on hot-button issues from guns to abortion to campaign finance, arguing that she'd bring liberal politics and an antimilitary bias to the job of a justice.

"She'll have to convince me that all of this liberalism that she's lived with all her life can be put in a proper place and when she gets to be a judge she'll be left of center but within the mainstream of judging," Sen. Lindsey Graham, R-S.C., said on "Fox News Sunday."

For the second summer in a row, a woman chosen by President Barack Obama is appearing before the Judiciary Committee for televised hearings in a cavernous room on Capitol Hill, where the questioning by senators is seldom polite but nominees rarely if ever go off-script.

If confirmed, the 50-year-old Kagan would be the fourth woman to join the Supreme Court, and her swearing-in would mark the first time three women have presided there at the same time.

The White House and Senate Democrats are painting Kagan, the first woman to be dean of Harvard Law School or to hold the job of solicitor general, as a pioneering figure and brilliant legal mind who can build consensus on the polarized court.

Later this week, they'll call conservatives, including two who served in the administration of George W. Bush -- Harvard Law School professor Jack Goldsmith and former Solicitor General Greg Garre -- in a bid to dispel GOP charges that she's a liberal rubber-stamp for Obama.

The GOP has worked to brand her a liberal extremist who betrayed the nation during wartime, and plans to try to bolster its case by spotlighting Kagan's dispute with the Pentagon over military recruiting at Harvard and the policy against openly gay soldiers. Its witnesses later this week include three veterans.

While at Harvard, Kagan barred recruiters from the career services office because the military's policy on homosexuality violated the school's nondiscrimination rules. She was also strongly critical of the "don't ask, don't tell" policy.

The Pentagon said Kagan's stance made Harvard ineligible for federal funding under a law that required schools to give military recruiters the same access as other employers.

Obama, while not present at the hearings, will nonetheless be a key theme for Republicans, who regard Kagan's nomination as a symptom of what they characterize as the president's attempts to remake the judiciary with judges who are willing to twist the law to achieve their agendas.

"President Obama wants justices who indulge their own policy preferences. There's every reason to believe that he's found that with Elena Kagan," said Ed Whelan of the conservative Ethics and Public Policy Center.

The fact that Republicans lack the votes to defeat Kagan's nomination "doesn't make the hearing unimportant," Whelan said. "This is an opportunity for Republicans and critics of the administration and of Elena Kagan to make clear to the American people what this administration is doing."

The White House has carefully choreographed Kagan's confirmation process, and knows that much of the public is just now learning who she is.

Presidential adviser David Axelrod joked with reporters Friday about the extraordinary string of major developments -- the abrupt dismissal of Gen. Stanley McChrystal and the Gulf oil spill chief among them -- occupying Obama's attention in recent weeks, all of which have helped push Kagan off the front pages and out of the public eye.

"Because things have been rather dull in Washington, we've scheduled these Supreme Court hearings just to enliven the festivities," Axelrod quipped.



Senate Judiciary Committee:

By Associated Press

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