Will Elena Kagan Face Questions Over Arizona's Immigration Law?

President Obama's nominee to the Supreme Court will appear before the Senate for confirmation as a major legal issue, coincidentally, burns along the nation's southwest border.

Arizona's new immigration law has generated an enormous national backlash, with critics alleging that it is unconstitutional. The Department of Justice says it's considering a lawsuit against the state for that very reason. Suddenly, the authority to demand citizenship papers has become one of the top constitutional issues on people's minds.

As it so happens, some of the law's detractors are also members of the Senate Judiciary Committee, which will hold hearings sometime in the next few weeks on the nomination of Elena Kagan, solicitor general and former dean of Harvard Law School, to replace Justice John Paul Stevens on the nation's highest court.

"I think it's bad for public safety," Minnesota Democrat Al Franken told a radio station, of Arizona's law, on Cinco de Mayo. "It goes way too far."

New York's Charles Schumer sent a letter to Arizona Gov. Jan Brewer asking her to delay the law's implementation. California's Dianne Feinstein has said she supports the Department of Justice's review.

Now would seem to be a good time to inquire, of a potential Supreme Court member, about the constitutionality of this new law.

It might be too early to tell whether they will do so. Hearings are probably a week away, at least, and senators are in the early stages of deciding what to ask. The committee has not yet given Kagan its formal questionnaire, and when the committee sees the speeches, documents ans answers Kagan returns, members will start to whittle down their lists of questions. (Spokespeople for a couple committee members said their bosses hadn't finalized their sets of questions yet; a couple others haven't yet responded to e-mails about whether the law will come up.)

The massive controversy surrounding the law might make the senators reticent. Here are some concerns to think about, in trying to predict how heavily the immigration question will be raised, and who might raise it.

For one, it's unlikely that a Democrat will try to pin Kagan down on any controversial issue. She's the president's nominee. Even if liberals oppose the law vocally, the senators know that asking about Arizona carries a risk: namely, giving Kagan the opportunity to say something that will blow up into controversy.

Republicans, meanwhile, do not seem eager to talk about Arizona's law. Texas Senator John Cornyn defended it at a Christian Monitor breakfast by saying he doesn't think it's "as onerous as it's been represented." Not exactly passionate support. Self-identified Republicans vastly support the law, so Republicans senators don't want to be perceived as criticizing it, either. Inquiring about its constitutionality, depending on how the question is phrased, could come off either way.

Regardless of whether she's asked, it's unlikely Kagan will answer any direct questions about the law.

As Kagan herself noted in a 1995 book review on Supreme Court confirmations, nominees can easily evade pointed legal questions by claiming the subject is either too vague (without a specific case at hand, preconceived notions shouldn't be aired) or too specific (it's inappropriate to comment on a matter that may come before the court). And this law realistically may wind up as the subject of a Supreme Court case, especially if the Department of Justice decides to challenge it.

Just because Kagan won't answer doesn't mean it won't get asked. Nominees won't talk about abortion, but senators can still ask about what they think of the Roe v. Wade decision.

Two senators to keep an eye on: Jon Kyl, a conservative immigration-reform advocate who represents Arizona; and South Carolina's Lindsey Graham, who has publicly suggested the law is "unconstitutional" and seems unafraid to buck the conservative base. Graham has shown a willingness to ask blunt (sometimes, dare I say, grandstanding?) questions during confirmation hearings. During Sonia Sotomayor's appearance before the committee, Graham put on a bona fide show.

Arizona's immigration law hangs as the biggest constitutional question in the news today, and, as politically tricky as it may be to ask about the new policy, it would seem entirely odd if no one did.

Perhaps senators will feel freer to ask about it, given the expectation that Kagan will simply avoid the question. But, if they follow the advice Kagan herself gave in that book review in 1995, the'll press for an honest, useful answer.