The Republican Party and allied conservative voices unveiled various issues on which they will challenge and attempt to derail Elena Kagan's nomination to the Supreme Court. Atop the list for the Republican National Committee stood -- somewhat curiously -- the constitutionality of the recently-passed health care law.
Roughly an hour before Kagan's nomination was formally announced, the RNC sent an email to reporters promising a "strong but respectful" tone during the upcoming confirmation hearings. First among the questions the committee will "rigorously" pose is the following: "Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?"
The focus on the health care law is a bit unexpected, owing to the various other policy and legal issues that have to this point dominated the discussion around Kagan. And, in a small respect, it is an illustration of how easily politics can seep into Supreme Court nomination and confirmation proceedings. Efforts to repeal the health care law are, by and large, considered rather helpless legal endeavors, though some may very well end up before the Supreme Court.
On Monday morning, John Barrasso, a Republican senator from Wyoming, emphasized on Fox News that he wants to make health care reform a crucial part of Kagan's confirmation hearing, reports Think Progress.
The other issue is the health care bill that's come out -- there's a mandate everybody in the country has to buy a product. That's a 10th amendment issue. Twenty states right now, Martha, are suing the federal government, and she is going to have to make a decision if she's on the court about how that goes forward with these 20 states suing. So where do states' rights come in, where is the role of the federal government, what can they mandate to the American people, and I'm going to want to hear answers on that.
And this is very different than a year ago with Sotomayor. This was not an issue because we didn't have this unpopular health care bill that's been forced down the throats of the American people.
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On Monday morning, one of the pied pipers of the conservative movement -- the Weekly Standard's Bill Kristol -- penned an item on the magazine's website calling for Kagan not to be confirmed. "Her hostility to the U.S. military," he wrote, was enough to ask whether she would be "An Anti-Military Justice?"
This is a more traditional line of attack against Kagan -- who attempted to ban military recruitment at Harvard Law (in response to their exclusion of openly gay service members) before ultimately relenting. But for Kristol to come out this quickly in opposition to her nomination is noteworthy in its own right. The conservative columnist actually endorsed Kagan -- "a very respectable choice," he said -- back in April 2010, though he did so in the context of urging Republicans to oppose her "with respect and with deference."
Combined, Kristol's post on Monday morning and the RNC's email blast soon thereafter give an early indication of where the battle lines will be drawn during the subsequent months. Kagan's scant legal record will, undoubtedly, be pored over by scrupulous eyes. But the issues that seem most likely to surface have distinct political threads. In addition to health care reform, the RNC pledged to turn the spotlight on the Solicitor General's views of the Constitution as a living document, and her handling of military recruiters at Harvard.