28 June 2010

Senate Begins Consideration of Obama’s Supreme Court Nominee

Elena Kagan faces senators’ questions in first step of confirmation process

By Bridget Hunter
Staff Writer

Washington — Elena Kagan, President Obama’s second nominee to the highest court in the United States, faces questions from U.S. senators in hearings that began June 28 on Capitol Hill.

Supreme Court nominees have undergone Senate confirmation since the United States was founded and have been considered regularly by the Senate Judiciary Committee since 1868. Nominees have been testifying before that committee as part of its deliberative process since 1925.

Kagan, nominated by Obama May 10, never served as a judge, but she has argued cases before the Supreme Court and clerked for the celebrated Supreme Court Justice Thurgood Marshall at the beginning of her legal career.

Describing Kagan as “one of the nation’s foremost legal minds,” President Obama praised her “lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government” when he announced her nomination.

“So I hope that the Senate will act in a bipartisan fashion, as they did in confirming Elena to be our solicitor general last year, and that they will do so as swiftly as possible, so she can get busy and take her seat in time to fully participate in the work of the court this fall,” he said.

In her opening statement to the Judiciary Committee, Kagan laid out her view of the high court and its role in U.S. democracy:

“The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind[s] me that it must also be a modest one — properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process,” she said. “That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Obama likely will nominate hundreds of federal judges during his presidency, but the nominations that draw the most attention are the lifetime appointments to the Supreme Court. His first nominee, Sonia Sotomayor, was sworn in as the 111th U.S. Supreme Court justice on August 8, 2009, after being confirmed by the Senate in a 68–31 vote. She replaced retiring Justice David Souter.

HIGHEST COURT IN THE LAND

The Supreme Court’s nine justices make up the court of final appeal from the lower federal and state courts. The court is also the venue for settling legal disputes between states or those that involve the United States and another nation.

The U.S. Supreme Court receives more than 7,000 petitions for review each year, but generally agrees to hear 100 or fewer. The majority of cases have gone through an appeals process, in which they have been decided at a lower level by a U.S. court of appeals. The 12 regional courts of appeals and a federal court for specialized cases include 179 judges. All those judges are appointed by the president with the advice and consent of the Senate.

As outlined in Article II of the U.S. Constitution, a Supreme Court justice, like Cabinet officials and other high-level political appointees, is nominated by the president and confirmed by the Senate. Prior to a vote by the Senate, the Senate Judiciary Committee holds hearings and questions the nominee. Following the hearings, the committee can refer the nominee to the full Senate for a vote.

A SUCCESSOR TO JUSTICE STEVENS

Kagan’s nomination followed an April announcement by the longest-serving judge, 89-year-old John Paul Stevens, that he would retire at the end of the court’s 2009–2010 session. Stevens has served on the court since 1975.

On May 10, Obama praised Stevens “as an impartial guardian of the law, faithfully applying the core values of our founding to the cases and controversies of our time.”

Stevens was appointed by Republican President Gerald Ford but increasingly has been viewed as a liberal judge. The justice has maintained he remained a centrist while the court, through a series of appointments of more conservative justices, moved to the right around him.

The current court is roughly divided between four judges generally considered liberal and four generally considered conservative. Sotomayor, Stevens, Stephen Breyer and Ruth Bader Ginsberg tend to align on the liberal side of issues, while Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas tend to cast conservative votes. Justice Anthony Kennedy frequently is a swing vote, with no consistent alignment with either group. Kagan, if confirmed, likely would tend to cast a liberal vote and probably would not change the dynamic of the court.

As with any Supreme Court nomination, Kagan will be scrutinized closely by the Senate, the news media and the American public as she moves through the confirmation process.

Although the Constitution imposes specific age, residency and citizenship qualifications for the president of the United States and members of Congress, it sets no similar qualifications for Supreme Court justices. No prior experience as a judge, expertise as a constitutionalist, or any legal training is mandated.

Nevertheless, virtually every appointment to the nation’s highest court has come from the pool of those with training in the law and professional experience as lawyers and judges. Kagan, even though she is an attorney and has served as dean of Harvard Law School and U.S. solicitor general, has been criticized because she has no experience as a judge.

This lack of judicial experience may challenge the senators because their questions during the hearing process usually focus on the nominee’s judicial record. This process can be contentious, especially in cases in which committee members are trying to gauge a nominee’s views on a controversial issue. Historically, about 20 percent of Supreme Court nominees fail to receive Senate confirmation.

More information about the U.S. Supreme Court is available on the court’s website.

(This is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://www.america.gov)