Today in Washington, D.C. - June 28, 2010 - Richard Byrd Dead - Kagan SCOTUS Nomination Hearings Begin

The Senate will reconvene at 2 PM today. With the recent death of Senator Richard Byrd (D-WV), the Senate is expected to name Sen. Daniel Inouye (D-HI) as President Pro Tempore (The senator who presides over the U.S. Senate in the absence of the Vice President). Richard Byrd, a democrat, was a former Ku Klux Klan member and West Virgina Senator. Although having been ill for some time, he achieved the goal of being the longest serving Senator in the history of the US Senate (1959 to 2010).

The Senate will resume consideration of the motion to proceed to H.R. 5297, the Small Business Lending Fund Act. At 5 PM, the Senate will take up the nomination of Gary Scott Feinerman to be District Judge for the Northern District of Illinois and then vote on cloture on the motion to proceed to H.R. 5297 and on the confirmation of the Feinerman nomination.

Today at 12:30 PM, the Senate Judiciary Committee began hearings on Supreme Court nominee Elena Kagan of Massachusetts to be Associate Justice of the Supreme Court. The hearings will continue for the next 3 days and into Friday, if necessary. Today’s session begans with opening statements from Chairman Pat Leahy (D-VT) and Ranking Republican Jeff Sessions (R-AL) followed by the other committee members. Then, Massachusetts Sens. John Kerry and Scott Brown will introduce the nominee. Following that, Kagan will give her introductory remarks. Wonder if Sen. Brown is already "in the tank" to vote yes on Kagan?

As the hearings for Kagan begin today, some Senate Republicans have serious questions about her background as a political lawyer and operative and whether she’ll properly be able to set her political ideology aside to decide cases based on the law. Senate Minority Whip Jon Kyl (R-Ariz.), a Senate Judiciary Committee member, told POLITICO, “I think a recurrent theme will be: Here you have a person who has been deeply involved in policy-politics most of her life — without a judicial record to demonstrate that she can put that behind her on the bench. . . . And therefore she’s got a burden of proof to find other ways to assure us that she will decide cases just based on the facts — and not just based on the politics.”

Last week, Senate Republican Leader Mitch McConnell laid out a key question about Kagan: “We don’t know how Elena Kagan will apply the law because she has no judicial record, little experience as a private practitioner, and no significant writings for the last several years. So the question before the Senate is whether, given Ms. Kagan’s background as a political advisor and academic, [do] we believe she could impartially apply the law to groups with which she doesn’t agree and for which she and the Obama Administration might not empathize?”

And documents released by the Clinton Presidential Library last week revealed that during her tenure in the Clinton White House she had an agenda to provide Democrats with an election advantage. Reacting to a Supreme Court decision that overturned restrictions on independent expenditures on political ads advocating for or against candidates by political parties, Kagan’s notes indicate that she advocated for a legislative correction to the ruling that would hand Democrats a political advantage. As Sen. McConnell explained, “Ms. Kagan’s notes reveal that finding ways to help Democrats over Republicans was very much on her mind. . . . Ms. Kagan’s notes show that she thought banning [soft money] would hurt Republicans and help Democrats. She even seemed to delight in the prospect of finding ways to disadvantage Republicans. Here’s what she wrote in her notes: ‘Soft [money] ban – affects Repubs, not Dems!’”

But soft money wasn’t the only area where Kagan looked for a political advantage for Democrats. She also suggested “free TV,” as in free political advertisements on TV, as a way to counteract what Democrats saw as an advantage for Republicans. In fact, her notes show she considered this as a way to counterbalance GOP independent expenditures. She wrote, “Free TV as balance to indep expends?? Clearly on mind of Dems – need a way to ctrbalance this.”

Sen. McConnell addressed Kagan's notes last week, “[H]er advocacy and apparent glee at identifying some political harm to Republicans is, to my mind, another piece of her record that calls into question her ability to impartially apply the law to all who would come before her as a justice on our nation’s highest court.  The more we learn about Ms. Kagan’s work as a political adviser and political operative, the more questions arise about her ability to make the necessary transition from politics to neutral arbiter.”

Constitutional loving Americans will be watching these Supreme Court confirmation hearings with interest. They want to know if Elena Kagan will fairly apply the law, follow the Constitution, and not legislate from the bench. Given her lack of judicial experience, these hearings may provide the public and senators a clue as to how she would approach being a justice on our nation’s highest court.

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