Republicans have found little in Elena Kagan's public statements, private utterances and nonjudicial paper trail to make a major fuss about. 'Boring' nominee stays under radar

Elena Kagan’s Supreme Court confirmation process has been so overshadowed by other events and issues, her name barely came up during President Barack Obama’s contentious lunch with Senate Republicans late last month.

Obama briefly solicited GOP support for Kagan, but not a single Republican raised a concern about her or asked a question about the nomination — instead, they focused on everything from health care to Iran to the Gulf oil spill, according to Republican senators.


Some kind of fight is certain to break out — what SCOTUS hearing hasn’t had at least a little drama? — but so far, the White House isn’t complaining about the lack of a spotlight on its well-coached, amiable and thus far noncontroversial nominee.

Republicans have found little in Kagan’s public statements, private utterances and nonjudicial paper trail to make a major fuss about. When more than 46,000 pages of her work in the Clinton White House were released Friday afternoon, only a handful of Republicans and their conservative allies off Capitol Hill raised concerns about some of her liberal-leaning positions.

All of which is making some wonder: What if they held a confirmation battle, but nobody showed up for a fight?

“She’s a little bit boring — and boring is good,” said one administration official close to the process, who added that the lack of a bombshell rallying point — aka “wise Latina” — is a “huge help.”

The administration is cautiously optimistic at the halfway mark of Kagan’s scheduled interviews with all 100 senators, saying the former Harvard Law School dean has actually made a better, more polished impression than did Justice Sonia Sotomayor, who occasionally came off as prickly during her gantlet of similar interviews last year.

“She doesn’t have a controversial opinion for all of us to talk about,” said South Carolina Sen. Lindsey Graham, the lone GOP member on the Judiciary Committee to back Sotomayor’s nomination last summer. “There’s no ‘wise Latina’ comment that has made a lot of news, so in that case, it’s probably good” for her.

Added Texas Sen. John Cornyn, chairman of the National Republican Senatorial Committee and a Judiciary Committee member: “She’s a blank slate. ... People are just sort of diligently trying to learn more about her and her record.”

The current calculus could certainly change once the Clinton library releases all 160,000 pages of documents from Kagan’s time as a White House adviser from 1995 to 1999. And her nomination could turn into a political wedge issue — and still spawn a major GOP offensive — if she stumbles during her hearings before the Judiciary Committee, which are scheduled to begin June 28.

“She’s one sound bite away from getting 70 votes or 52 votes,” Graham said.

Despite Kagan’s low profile, she’s been laying valuable groundwork, Obama aides said — using the Senate meetings as a series of focus groups to test answers to the toughest questions she’ll face at her confirmation hearings.

When senators asked about her controversial decision to ban some military recruiting while she was dean of Harvard Law School, she has been emphasizing that her objections were narrow — based on the Pentagon’s “don’t ask, don’t tell” policy — and don’t reflect hostility to the military.

She also pointed out that military recruiters could actively recruit “250 feet away” from her office at the school, according to a staffer who was present at one of the sit-downs.

She’s tried to make light of her 1994 book review in which she decried the muzzling of Supreme Court nominees and the lack of “substantive discussion” of a candidate’s views, Senate aides told POLITICO. But she’s also assured them that she will, in fact, provide more expansive answers during the hearings — even if those answers will largely be confined to explanations of her arguments before the court as Obama’s solicitor general.

Kagan’s boosters are confident she can withstand the scrutiny, and Republicans privately acknowledge that she’ll almost certainly be confirmed and that fighting tooth and nail to block the nomination may not be politically advantageous.

The 50-year-old Kagan has never been a judge and lacks published opinions, having spent much of her career in academia and government, making it harder to attack her nomination.

Another reason she’s not likely to face a major fight: She would replace the liberal lion on the court, Justice John Paul Stevens, ensuring that its balance of ideological power would not shift.

Moreover, some in the GOP said there’s “judicial fatigue” in the Senate, given that Kagan is the fifth Supreme Court nomination in the past five years and that there could be another nomination before Obama’s first term is up — and, as a result, the public may not be that engaged this time around.

Cornyn said a fight over judicial nominations would be good politically, since “Republican voters understand very well and are very energized about the issue of judicial activism.”

But asked why the party hasn’t been making that case more aggressively in the context of Kagan’s nomination, Cornyn said Republicans were already on safe ground because they pushed the issue hard during Sotomayor’s nomination.

“Sotomayor basically made our argument for us,” Cornyn told POLITICO. “To that extent, I think we’ve won that war.”

Sen. Jeff Sessions (R-Ala.), ranking member on the Judiciary Committee, said the military recruitment issue and Kagan’s position arguing for more restrictive campaign finance laws in the Citizens United case have already become controversies in the confirmation process.

But even he said there hasn’t been as much outrage as expected at her position on military recruitment, which he called an “obvious problem from the very beginning.”

“A lot of people have misunderstood how significant it is and exactly what happened,” said Sessions, who is prodding the Pentagon to give up documents detailing Kagan’s role barring the recruiters from campus. “As people understand exactly what happened — that this was not something she inherited but an issue she drove and led on — it makes it more a significant issue.”

Sessions has also latched onto some of Kagan’s writings when she was a clerk for late Supreme Court Justice Thurgood Marshall, saying she has a “demonstrated history of bringing her liberal politics into the courthouse.” After the release of the Clinton-era records, Sessions’s aides pointed to several controversial positions she took as the former president’s senior aide, including ones over school rezoning, abortion, crime, the Second Amendment and marriage.

But Democrats are prepared to argue that Kagan was performing her duties as a White House aide — not as a judge — and will liken her approach to the one that Chief Justice John Roberts took when he worked as a lawyer during the Reagan administration, before becoming a judge.

For now, it’s far from clear whether Republican senators will unify behind Sessions’s more aggressive strategy.

Senate Minority Whip Jon Kyl (R-Ariz.), a senior member of the Judiciary Committee, said “there is no concerted Republican approach to the Kagan nomination” — except that he and Senate Minority Leader Mitch McConnell (R-Ky.) have urged Republicans to wait until her testimony and the release of her records before making final judgments.

McConnell has raised several concerns about the nomination, including whether Kagan supports banning books. But Kyl said her “thin” paper trail means the GOP will need to get more out of her in the vetting process.

“For those who want to make it a political issue, you might wait and see what kind of ammunition you got before you start firing,” Kyl said.

Still, Graham said that a fight, in the end, could very well not become as heated as initially thought.

“You know, she’s replacing Stevens. At the end of the day, that matters,” Graham said. “She’s been pretty open-minded and pretty solid in her reasoning. Generally speaking, I expect her to be completely opposite ... of what a Republican would have nominated in terms of philosophy, but she seems to be obviously a smart person and has done a pretty good job as solicitor general.”