Supreme Court Nominations

Is There a ‘Wise Latina’-Type Revelation Lurking in Kagan’s Background?

The debate over the U.S. Supreme Court confirmation of Sonia Sotomayor was largely driven by her prior comment about a “wise Latina” possibly being able to reach a better result as a judge. Is there a similar revelation lurking in the background of Elena Kagan, said to be Obama’s choice to replace Justice John Paul Stevens?

It’s possible but unlikely, SCOTUSblog concludes. Kagan already made extensive disclosures of her finances, writings and speeches when she went through the confirmation process for solicitor general, the blog says. Nothing very substantial surfaced. The only significant information yet to be mined would come from files from the Clinton administration where Kagan was a lawyer in the White House counsel’s office and a domestic policy official.

It’s unclear how many of the materials will be withheld under claims of attorney-client privilege, the blog says. In any event, the administration has already had ample time to check those files for smoking guns.

One issue that may surface is Kagan’s lack of judicial experience, according to the blog and the New York Times. “That lack of time on the bench may both help and hurt her confirmation prospects,” the Times says, “allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks.”

SCOTUSblog identifies nine other issues that will be cited by supporters and detractors, and five issues that won’t “blossom into major points of discussion.” Among the issues that will be cited by detractors:

• Her stance in an amicus brief against a law that bars funds for schools that ban military recruiters because they discriminate against gays. Kagan opposed the law, but allowed military recruiters on campus.

• Her views on executive power. Kagan has promoted strong presidential power in administrative matters, but not in the war on terror.

• An article she wrote criticizing Supreme Court nominees who don’t give detailed answers to questions about specific issues.

One of the issues that won’t amount to much involves religion, according to SCOTUSblog. With the confirmation of Kagan, the Supreme Court will have three Jewish justices and six Catholics. “But religious heritage seems not to be emerging as a real issue,” the blog says.

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