Leading Republican senator questions Kagan nomination

Chris Rizo May 11, 2010, 5:00pm

Cornyn (R-Texas)

WASHINGTON (Legal Newsline)—U.S. Sen. John Cornyn on Tuesday questioned the experience of President Barack Obama's pick this week to the U.S. Supreme Court.

In an appearance on MSNBC's "Andrea Mitchell Reports," the Texas Republican said he has questions about Solicitor General Elena Kagan's lack of judicial experience.

"When the president said he was going to appoint someone who could understand the impact of law on average, everyday people, Elena Kagan is not that person," said Cornyn, a member of the Senate Judiciary Committee, which will host her confirmation hearings.

In 2005, Cornyn supported President George W. Bush's failed Supreme Court nomination of Harriet Miers, who also had never been on the bench. But Cornyn said there are practical differences between Miers and Kagan.

"By virtue of her practical legal experience, Ms. Miers had imminently more experience as a lawyer," Cornyn said. "She, like Ms. Kagan, has not been a judge, and I don't think that should be a disqualifier. But, certainly, I would think someone not just with lengthy practical experience, in the president's words, knowing how the law will actually apply to average citizens, is helpful along with judicial experience."

Obama's pick follows a tradition of picking nominees with Ivy League roots to serve on the high court. Kagan was educated at Princeton and became dean of Harvard Law School in 2003, about a year after President Bill Clinton nominated her unsuccessfully to the U.S. Court of Appeals for the District of Columbia.

Of her nomination this week to the U.S. Supreme Court, Cornyn said he worries that Obama has "chosen another person from an elite law school here on the East Coast, and there are a lot of law schools, a lot of highly qualified people around the country in the heartland that should have been given consideration."

If confirmed by the Senate, Kagan, 50, would be the 112th justice to serve on the U.S. Supreme Court. She would fill the vacancy soon-to-be-left by retiring Associate Justice John Paul Stevens, 90, who has reliably provided the court's liberal bloc with a vote.

Replacing Stevens with Kagan is not expected to alter the ideological balance on the court. But observers note that since Kagan is just 50, the former Harvard Law School dean could be on the Supreme Court for decades to come.

She would be the fourth woman to serve on the Supreme Court, and the current panel's youngest member. She would be the first U.S. Supreme Court justice since 1971 who has no judicial experience.

One experience Kagan has for sure is with confirmation hearings.

She had her own this year to serve as the Obama administration's voice before the Supreme Court as solicitor general, and in 1993, then-Sen. Joseph Biden, D-Del., chairman of the Senate Judiciary Committee, hired her to serve as a special counsel during confirmation proceedings for Clinton's first Supreme Court nominee, Ruth Bader Ginsburg.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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