New York Times

May 12, 2010

On Capitol Hill, Kagan Gets to Know Her Voters

By SHERYL GAY STOLBERG
WASHINGTON — Elena Kagan’s lack of judicial experience and her stance on the military’s “Don’t Ask, Don’t Tell” policy emerged Wednesday as potential flashpoints in her confirmation hearings. The top Republican on the Senate Judiciary Committee said he was not satisfied with her explanation of why she had briefly barred military recruiters from using Harvard Law School facilities when she was dean.

“It seemed to me a little bit out of touch,” the Republican, Senator Jeff Sessions of Alabama, said after about an hour with Ms. Kagan. “That you think you could disagree with a legal policy of the military, and that would allow you to in any way inhibit their ability to come to your campus, I think indicates some of the dangers of being in the rarefied atmosphere of the academy.”

Their private talk was one of eight meetings that Ms. Kagan, President Obama’s nominee to succeed Justice John Paul Stevens, had with senators on Wednesday as she began paying traditional courtesy calls to some of the 100 men and women who will vote on whether she is qualified to sit on the Supreme Court.

In her job as solicitor general, Ms. Kagan does plenty of talking; she is the lawyer who represents the government before the Supreme Court. But now, as she concentrates exclusively on winning Senate confirmation, Ms. Kagan is practicing a different skill: keeping her mouth shut.

She smiled politely Wednesday as she traipsed through the corridors of the Capitol, surrounded by a team of White House officials and trailed by camera-toting crews. For her first photo opportunity, she sat mum alongside the Senate Democratic leader, Harry Reid of Nevada, who promised a smooth confirmation process.

For her second, with Senator Mitch McConnell of Kentucky, the Republican leader, she allowed herself precisely five words: “Thank you very much, senator.” (Mr. McConnell had just come from the Senate floor, where he had suggested that Ms. Kagan would be a “rubber stamp” for the administration — an assertion he did not repeat in her presence.)

By afternoon, Ms. Kagan was loosening up a bit. “Everybody’s treating me very well,” she said on her way to see Senator Herb Kohl, Democrat of Wisconsin. She paused, then added, “That’s the most I’ve said all day.”

The White House and its allies are casting Ms. Kagan, 50, as a trailblazer and a brilliant academic. An umbrella group of liberal advocacy organizations, the Coalition for Constitutional Values, is running a national television spot that serves up a gauzy vision of her life story: daughter of a lawyer and a teacher, graduate of Princeton and Harvard Law, public servant in the Clinton and Obama administrations.

On Capitol Hill on Wednesday, it quickly became clear that Republicans were trying to paint a very different picture, of a woman in an ivory tower who lacks the requisite experience to serve on the highest court in the nation.

“My view is that her experience is very thin,” Mr. Sessions said. “You do not have to be a judge to go on the Supreme Court; I acknowledge that. But I think if you’re not a judge, I would like to have seen somebody in the harness of the practice of law for a number of years, who demonstrated discipline.”

He said Ms. Kagan defended herself. “She felt she had the experience to do the job, and she didn’t hesitate in that answer.”

Republicans and Democrats agreed that they intend wrap up Ms. Kagan’s confirmation hearings before their August recess, though it is unclear precisely when the hearings will be held.

Senator Patrick J. Leahy, Democrat of Vermont and the Judiciary Committee chairman, said the military recruitment issue would be “a legitimate question at the hearing,” although he defended Ms. Kagan, who did not bar recruiters from campus entirely but rather kept them from using law school facilities.

“I don’t think anybody’s ever had difficulty talking to recruiters of any of our services at Harvard,” Mr. Leahy said.

In a sense, the meetings amounted to job interviews, or maybe show and tell. Senator Orrin G. Hatch, Republican of Utah, showed Ms. Kagan the rifle the National Rifle Association gave him to honor his commitment to the Second Amendment.

Democrats seemed intent on showing off the nominee’s lighter side. Senator Richard J. Durbin, Democrat of Illinois, said he swapped Chicago stories with Ms. Kagan, who once taught law at the University of Chicago.

She told him she liked Medici Pizza in Hyde Park, Chicago hot dogs and baseball games at Wrigley Field. (A Mets fan, Ms. Kagan also became “partial to the Red Sox when she was in Boston,” Mr. Durbin said.) And she seemed to have a ready answer when Mr. Durbin pressed her on an article she once wrote calling on Supreme Court nominees to be more forthcoming.

“She said the world looks a little bit different from this vantage point,” Mr. Durbin said.