Now that Kagan’s hearings are over, court watchers have turned their attention to predicting the votes. I’m told Republicans are hopeful that Democratic senators like Ben Nelson and Blanche Lincoln, who face tough reelection fights, will be persuaded to join Republicans and vote against Kagan because of her extreme advocacy on the issues of partial-birth abortion and the Second Amendment. And Sen. Arlen Specter may be inclined to vote against her: He already voted against her once, he’s on his way out, and what does he owe Obama, anyway, after being thrown under the bus? Besides, Kagan was even more evasive than Sotomayor.
However, few people are discussing how Specter’s vote will be affected by Kagan’s embrace of the so-called “Graham Amendment.” The Graham Amendment would have prevented non-citizen Gitmo detainees from appealing their convictions in U.S. courts. Before her nomination, Kagan joined a number of other law professors in condemning the amendment. Likewise, Senator Specter was deeply troubled by it, arguing that it was inconsistent with American values and ultimately unconstitutional. According to Specter:
There have been repeated efforts in the history of our country to take away the jurisdiction of the courts. Court stripping was a big issue in the confirmation process of Chief Justice Roberts. He ran from it like the plague. He had an early memo. He didn’t want to be associated with it. These are weighty and momentous considerations that go far beyond the detainees at Guantanamo. And we ought not to be deciding these questions on an amendment, which was agreed to yesterday between Senator Graham and Senator Levin, and no one has had a chance to study or analyze — most of all the authors — which on the face takes away jurisdiction of the Supreme Court of the United States. It is untenable and unthinkable and ought to be rejected.
But when asked about the Graham Amendment last week, Kagan praised passage of the legislation, stating “Congress came together, 84–15, a remarkable act of bipartisanship, and passed a very good piece of legislation.”
Specter did not ask Kagan what she meant by “a very good piece of legislation.” It is possible that he was out of the room when she made those remarks, that he did not hear, or that his staff chose not to alert him that the nominee had embraced a policy he had long opposed. Whatever the case, he obviously did not think it was a very good piece of legislation; it will be interesting to see if he holds it against her.
– Gary Marx is executive director of the Judicial Crisis Network.