Top Republican sees bumpy Kagan court confirmation

WASHINGTON (Reuters) - Supreme Court nominee Elena Kagan will face tough questions at a Senate confirmation hearing because she has never been a judge and has no record of judicial opinions, a top Republican senator said on Sunday.

U.S. Solicitor General and Supreme Court Nominee Elena Kagan smiles as she begins her day-long tour of Captiol Hill at the office of U.S. Senate Majority Leader Harry Reid (D-NV) on Capitol Hill in Washington May 12, 2010. REUTERS/Jason Reed

If confirmed, President Barack Obama’s second nominee to sit on the highest U.S. court would become the first justice in nearly 40 years who has never served as a judge.

“We’ll be looking at her testimony because she has so little other record,” Jeff Sessions, the senior Republican on the senate Judiciary Committee told ABC’s “This Week.” “This is going to be a big deal. It’s so important how she testifies.”

Without a judicial career and trail of judicial opinions, senators believe it will be tougher to properly vet Kagan on issues such as abortion and gay rights.

Kagan, the first female dean of Harvard Law School, is currently solicitor general, a post in which she argues cases on behalf of the U.S. government before the Supreme Court. Obama picked her to succeed retiring 90-year-old Justice John Paul Stevens, a leading liberal voice on the bench.

The Obama administration on Saturday wrote to the National Archives asking to expedite the release of all of Kagan’s records, including those from her tenure as White House associate counsel to President Bill Clinton between 1995 and 1999.

The letter by Robert Bauer, counsel to Obama, sympathized with the mammoth task involved in releasing 160,000 pages of Kagan’s records but said their quick release was necessary for the Senate to evaluate her nomination.

Sessions said he was concerned about Kagan’s attempts to keep Harvard’s policy of barring military recruiters from the campus during a time of war and would question her about it during the hearing.

“This is no little-bitty matter,” he said.

While Kagan overturned the Harvard policy after a Supreme Court ruling, Sessions said at various times during the debacle she “was not in compliance with the law ... and it was because of a deep personal belief that she had this policy.”

Republicans argue that Kagan opposed the on-campus recruiters because she opposed the ban on gays serving openly in the military, seizing on it to portray her as anti-military.

“She would not let them come to the area that does the recruiting on the campus, ” Sessions said. “And this is not acceptable. It was a big error.”

Former Republican House Speaker Newt Gingrich, speaking on “Fox News Sunday,” called on Obama to withdraw Kagan’s nomination because she was “antimilitary” and “we’re in two wars.”

Judiciary Committee Chairman Patrick Leahy, a Democrat, defended Kagan by saying she was trying to follow Harvard policy, noting that during the episode the recruiters remained on the campus.

“I realize you have so many special interest groups on the far right or the far left who have points,” Leahy said on “This Week.” “We ought to make up our own mind. We should be bright enough to do it.”

Charles Schumer, a Democrat from New York who is a member of the Senate Judiciary Committee, said Kagan was “hardly a blank slate,” pointing to her time in the Clinton White House.

“There will be plenty of information about her. Some of our greatest justices have not been judges,” Schumer told NBC’s “Meet the Press,” describing Kagan as “brilliant and practical.”

He said she was not the first person without judicial experience to be nominated for the Supreme Court, noting that Justice William Rehnquist had also not been a judge.

Reporting by Lesley Wroughton, editing by Anthony Boadle and Bill Trott