Committee Delays Kagan Vote One Week

By Mark Walsh — July 13, 2010 2 min read
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The Senate Judiciary Committee today delayed a vote on Elena Kagan’s nomination to the U.S. Supreme Court for one week, under a request from Republicans.

Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, made the request under the panel’s rules, and Chairman Patrick Leahy, D-Vt., said he would honor it because he always respects the rule allowing the delay request.

Sen. Sessions said he thinks there are “serious questions about this nomination,” especially over Kagan’s handling of military recruiters while she was dean of Harvard Law School. Sessions pressed Kagan vigorously on that issue during her confirmation hearings earlier this month.

The committee vote on Kagan’s nomination is now scheduled for Tuesday, July 20, with a floor vote still expected before the Senate’s August recess.

Last week, Kagan responded to written questions from several Judiciary Committee Republicans, including several on education. Sen. Sessions asked Kagan about a desegregation case about which Kagan wrote a memo as a law clerk to Supreme Court Justice Thurgood Marshall. In the 1987 memo about a pending appeal in Citizens for Better Education v. Goose County Consolidated Independent School District, Kagan had called a school rezoning plan that took student race and ethnicity into account “amazingly sensible” and “fair-minded.” (The court did not end up granting review of the case.)

Kagan responded to Sessions: “My recollection is that when I said the plan was ‘amazingly sensible,’ I meant that it was narrowly tailored to achieve the district’s goals.”

Sessions also asked her view of the court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which restricted the ways schools could consider race in education.The implication from Sessions and other Republicans has been that Kagan backed a form of voluntary consideration of race that was later undermined by the court’s decision in Parents Involved.

“I do not recall the facts of Citizens for Better Education well enough to comment on
whether the court of appeals’ decision in that case was consistent with Parents Involved,” Kagan told Sessions. “Parents Involved is settled law, entitled to stare decisis effect. I do not believe it would be appropriate for me to comment on the correctness of Parents Involved.”

(This exchange is Question 16 on Sessions’ written questions to Kagan.)

Sen. John Cornyn, R-Texas, meanwhile, asked Kagan in writing which Supreme Court cases decided since she had graduated from law school (in 1986) were the most significant. (Question 20 on Cornyn’s list.)

Among the five or six cited by Kagan were Grutter v. Bollinger and Gratz v. Bollinger, the 2003 rulings which upheld affirmative action in higher education in principle but struck down some procedures used by the University of Michigan. Kagan described the rulings, but did not elaborate about their significance.

She also cited United States v. Lopez, a 1995 ruling in which the court invalidated a federal law that made it a crime to possess a gun near a school, saying that Congress had exceeded its powers under the Constitution’s commerce clause.

Lopez ... set limits on Congress’s ability to regulate non-economic activity
under the commerce clause,” Kagan said.

A version of this news article first appeared in The School Law Blog.