A Guide to the Kagan Smears

Solicitor General Elena Kagan's nomination to the Supreme Court has drawn glum shrugs from the left and yawns from the right, and that's probably just how the White House wants it -- they are looking for as quiet a confirmation process as possible. Because Kagan has no judicial record or large volume of academic work to speak of, Republicans have been forced to draw on even more specious arguments than usual to gin up opposition to her nomination. Following is a brief guide to the Republican case against Kagan, and the Democrats' likely responses.

She went after the military at Harvard.
Republicans have sought to portray Kagan as hostile to the military because she reinstated a Harvard policy of not allowing the military to use the school's career-services office after a court ruled academic institutions were within their rights to do so.

Conservatives have sought to portray this as an outright ban on military recruiters, but this is inaccurate. Kagan merely correctly applied Harvard policy that any employer with discriminatory policies would not be welcome to use the career-services center. On-campus military recruiting continued through the Harvard Law School Veterans' Association. When the Supreme Court ultimately ruled that colleges accepting federal assistance had to accept military recruiters, Kagan reversed her decision.

Kagan did refer to "don't ask, don't tell" as a "moral injustice of the first order." The problem for Republicans is that most of the country and the current military brass agree with her. Judging by the number of military witnesses being called by the GOP, they're going to press this line of attack the hardest.

She's anti-gun.
In 1987, while working as a clerk for Supreme Court Justice Thurgood Marshall, Kagan wrote that she was "not sympathetic" to a petitioner trying to overturn D.C.'s handgun ban. Ultimately the ban was overturned by the Heller case.

Republicans will also point to e-mails sent during her time in the Clinton administration in which Kagan referred to the National Rifle Association and Ku Klux Klan as "bad guy orgs," suggesting an equivalence between the two groups. As Greg Sargent reported, the phrasing was a reference to two separate provisions of the law in question -- one that Democrats feared would shield hate groups from liability, and another that might make it more difficult for victims of gun violence to pursue liability claims.

Republicans have actually been down this route with Kagan before, during her confirmations hearings for solicitor general, when she stated flatly that Heller was settled law. Not much has changed since.

She's an activist.
Republicans have pointed to two things -- Kagan's clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a "judicial hero" -- as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn't likely to take Republicans very far. As the first African American on the court, he's a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.

This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts' hollow conceit about judges merely calling balls and strikes.

The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.

She's a stalking horse for the implementation of Sharia.
This is perhaps the most laughable claim against Kagan. Let's start with a definition: Sharia is Islamic religious law, but in conservative parlance, it's code for Islamic extremism. Recently, Sen. Jeff Sessions suggested Kagan was responsible for establishing "a center for Islamic studies and Sharia law" while dean at Harvard. In fact, Harvard University, not Harvard Law, established the Islamic Studies program. The program instructs Harvard students in the history and culture of the Islamic world.

In 2003, while Kagan was dean, the program's Islamic Finance Project came under the auspices of the Islamic Legal Studies program at Harvard Law. Islamic finance works to bring financial practices in line with Islamic religious law, which prevents certain common practices, such as charging interest on loans. Islamic finance is a growing part of the global financial sector, and any law student wanting to work with or for a company in Bahrain or Malaysia would have to know something about it.

The rough Republican rhetorical frame is likely to be that Kagan banned the troops but welcomed the Muslims. So far it has mostly drawn flies and yawns.

She's a partisan.
This one is both true and hard to take seriously as a criticism. Most of Kagan's career has consisted of giving private legal advice to clients, and those clients were often Democrats. But every single conservative currently on the bench worked in the executive branch of a Republican administration. Also, justices are notoriously unreliable partisans as they age -- the court's current liberal leader, Justice Stevens, was appointed by a Republican.

She has no experience.
Kagan has never been a judge, but neither was conservative icon and former Chief Justice William Rehnquist. She draws high marks from all of her former employers and has shown herself to be adept at arguing before the Supreme Court despite not having done so prior to her tenure as solicitor general. She's racked up some important wins for the government, including the recent Holder v. Humanitarian Law Project ruling criminalizing virtually any contact with groups designated as terrorist organizations. She's also had some big losses, among them the Citizens United case that overturned campaign finance reform. But since most Americans oppose that ruling, Republicans are treading on thin ice there. A more accurate complaint about Kagan's record -- it's unclear what her legal philosophy is, or would be on the bench -- should bother liberals as much as conservatives.

The Bottom Line.
Kagan once argued that confirmation hearings had turned into "a repetition of platitudes." She's right -- but her nomination is in part the result of a White House eager to avoid a tough confirmation fight, and so she better be ready to call on those same platitudes to save her from a substantive grilling.

The Democrats on the committee should by no means let her get away with that. Her participation in the continued expansion of government power in the name of national security should be probed carefully. Just because most of the complaints conservatives have about her are baseless doesn't mean Democrats should give her a pass.

The president suggested that Kagan's critics don't have much to use against her. The flip side is that liberals don't really have much to like. Kagan should use the hearings to do more than deflect Republican criticisms. She should also give liberals a reason to vote for her confirmation. Barring some last minute game-changer, Kagan's road to confirmation is likely to be smooth -- all the more reason for Democrats to push for something more than the usual hollow Beltway ritual.

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