Supreme court nominee faces fierce US Senate battle

Elena Kagan's confirmation hearing will be used by Republicans to attack Barack Obama's policies

Supreme court nominee Elena Kagan
Supreme court nominee Elena Kagan will face tough questioning from Republicans at her confirmation hearing. Photograph: Pablo Martinez Monsivais/Associated Press

The US Senate launches a confirmation hearing for the supreme court nominee Elena Kagan tomorrow, which is shaping up as a political battle over big government and activist judges, ahead of November's midterm elections.

Kagan, who may regret calling such hearings a "vapid and hollow charade", will face Republican senators questioning her views as a means to attack the president and the Democrats over what they see as the unconstitutional expansion of federal government power. Although the questions are expected to focus on judicial principles, they are intended to raise questions about contentious legislation, such as Barack Obama's healthcare reforms, which is likely to come before the supreme court.

If she is confirmed, Kagan, 50, would be the youngest member of the court and could be expected to influence its decisions for decades.

The Democrats are seeking to challenge a conservative-leaning supreme court that they see as serving corporate America, such as its recent judgment lifting restrictions on big companies funding political advertising.

Senator Jeff Sessions, the top Republican on the judiciary committee, said he intended to use the hearing to inquire into what the choice of Kagan says about Obama and his policies. "The American people are concerned about their courts and their expansive government, which seems to be beyond anything they've ever seen. They'd like to know what their judges might do about it," he said.

If she wins confirmation, Kagan may find herself ruling on legal challenges by several states to the healthcare reforms. Sessions also questioned Kagan's lack of experience in court – she was dean of Harvard law school and served as solicitor general – saying she had "serious deficiencies".

"She has the least experience of any nominee in the past 50 years and that raises questions," he said. "Her political instincts have been strong. She's been aggressive on issue after issue from the liberal side."

One issue Republicans have focused on is Kagan's refusal, when dean of Harvard law school, to allow military recruiters on to the campus until she was forced to by a threat to withdraw government funds.

Judiciary committee members have tried to divine Kagan's views from 160,000 pages of records covering her time as a legal adviser to President Bill Clinton and as a clerk to an earlier supreme court justice, Thurgood Marshall, as well as her speeches at Harvard.

Republican suspicions that she would be a liberal "activist judge" have been reinforced by Obama's description of Kagan as someone who understands the law "as it affects the lives of ordinary people".

The Democrats see Kagan as a step toward offsetting the supreme court's conservatives.

Senator Patrick Leahy, the judiciary committee chairman, has attacked a conservative activist majority on the supreme court for "wrong-headed decisions", such as the recent lifting of restraints on companies paying for political advertising and its rejection of a lawsuit over sexual discrimination in pay.

But in contrast with their enthusiastic support for Obama's last appointment, Sonia Sotomayor, some liberals are not entirely comfortable with Kagan's record. The National Bar Association, the country's largest and oldest group of African-American lawyers, has given only lukewarm approval of her nomination. They have held back from formally endorsing her because of reservations about her views on affirmative action, racial profiling and immigration. They are also critical of what they see as her foot-dragging over racial diversity when she was Harvard dean.


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