Image: Elena Kagan
Manuel Balce Ceneta  /  AP
Supreme Court nominee Elena Kagan's confirmation hearings begin Monday.
updated 6/22/2010 3:51:01 PM ET 2010-06-22T19:51:01

For several grueling hours each day, Supreme Court nominee Elena Kagan sits at a witness table, facing a phalanx of questioners grilling her about constitutional law, her views of legal issues and what qualifies her to be a justice. They are not polite.

It's all a rehearsal for Kagan's big performance next week during her confirmation hearings at the Senate Judiciary Committee. The "murder boards" are elaborately planned sessions where Kagan hashes out answers to every conceivable question and practices staying calm and poised during hours of pressure and hot television lights.

About 20 members of President Barack Obama's team play senators, peppering Kagan with tough questions designed to trip her up or elicit an unscripted response. Kagan practices being herself. She works to avoid handing her opposition the 10-second sound bite that could derail her so-far smooth trajectory toward confirmation.

The process is shrouded in secrecy; the White House refuses to describe it. But officials say that White House counsel Bob Bauer's office is in charge of the sessions, which take place in an office building just steps from the West Wing, with Deputy Counsel Susan Davies running most of the day-to-day practice.

The questioners, who at various times have included Kagan's pals from academia as well as White House and Justice Department lawyers, are friendly; but the practice sessions themselves are designed to be anything but.

Rachel Brand, a lawyer who helped prepare former President George W. Bush's nominees, Chief Justice John Roberts and Justice Samuel Alito, for their Judiciary hearings, said the subject sits through "tough questions, argumentative questions, annoying questions."

The purpose, she said, "is to ask those hard questions in the nastiest conceivable way, over and over and over, so that the nominee can get any indignation, frustration, outrage, what have you, out of their system in advance so they don't come out at the hearing."

The murder boards also are designed to help Kagan — the 50-year-old former Harvard Law School dean who was confirmed last year as Obama's solicitor general — brush up on the subjects she'll be asked about. When she's not rehearsing, White House officials say, Kagan has been spending her time reading and reviewing key cases and legal writings.

"It's a huge cram-course on constitutional and other relevant areas of law," said Ian Millhiser, an analyst at the liberal Center for American Progress who was a legal researcher for another Democratic-aligned group during the confirmation hearings for Obama's first nominee, Justice Sonia Sotomayor.

"No matter how brilliant you are and how much time you've spent dealing with legal issues, there's going to be an important issue out there that you don't know everything about, and that a senator is going to ask you a question on," Millhiser said.

Kagan and Obama's team have plenty of clues about what questions to expect. She spent the five weeks immediately following her nomination May 10 meeting individually with more than 60 senators in private on Capitol Hill. Aides who accompanied her took notes on what was said, in part to help inform Kagan's hearing preparations.

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Nominees and White House lawyers also scrutinize transcripts of previous Supreme Court nomination hearings for clues on what the 19 members of the Judiciary Committee typically ask.

Some senators reveal their questions in advance, like giving a nominee an open-book exam.

Sen. Arlen Specter, D-Pa., who voted against confirming Kagan as solicitor general because he said she wouldn't answer important legal questions, has written to her three times and spoken on the Senate floor to broadcast what he will ask this time.

Specter wants to ask whether she would vote to hear a case on the constitutionality of the terrorist surveillance program. He also wants her views on lawsuits brought by Holocaust victims and their heirs to recover World War II-era insurance claims, and suits brought by 9/11 victims. His must-ask list is long.

Kagan herself has written scathingly of the confirmation hearings, calling them a charade in which nominees work hard to evade important questions. Now she is probably practicing effective ways to do precisely that, say students of the process.

Incendiary hearings, like the one Supreme Court Justice Clarence Thomas called a "high-tech lynching" to the face of his inquisitors, are rare. It's in the interest of the nominee's sponsors to make them tedious, and they often succeed at that.

But Roberts noted that while nominees are at the witness stand for as many as 12 hours, if they make one 10-second mistake, it's all anyone will ever know about them, said Benjamin Wittes of the Brookings Institution, who quoted the chief justice in his book "Confirmation Wars."

"That is what the murder boards are about," Wittes said. "They're about making sure that that 12 hours is as boring as possible, and making sure that those 10-second moments that will make them not boring do not happen."

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Photos: Elena Kagan, Supreme Court-bound?

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  1. In this image released by the White House, shows 9-year-old Elena Kagan, left, with her family on Jan. 24, 1970. (AP) Back to slideshow navigation
  2. Elena Kagan selected a quotation from former Supreme Court Justice Felix Frankfurter to accompany this photo from 1977 in her Hunter College high school year book: "Government is itself an art, one of the subtlest of arts." (Ellen Purtell / Hunter High School via AP) Back to slideshow navigation
  3. In this undated photo released by Hunter College High school, Kagan, second from left in the front row, poses with members of the student government in the school's 1977 yearbook. Kagan, wearing a robe and holding a gavel, was the student council president. (Ellen Purtell / /Hunter High School via AP) Back to slideshow navigation
  4. Elena Kagan, standing, served as editorial chairman for The Daily Princetonian while she studied history as an undergraduate at the university. The New York City native graduated in 1981. (Courtesy of The Daily Princetonian) Back to slideshow navigation
  5. Kagan graduated in 1981 summa cum laude from Princeton with a degree in history. (Courtesy of Princeton University) Back to slideshow navigation
  6. Kagan joined the University of Chicago Law School faculty as an assistant professor in 1991 and served as a tenured professor from 1995 to 1997. (AP) Back to slideshow navigation
  7. In this 1992 photo provided by the University of Chicago Law School, Elena Kagan, left, then an assistant professor at the university, participates in the law school's faculty-student trivia contest with Daniel Shaviro, former law school professor, now with New York University. (AP) Back to slideshow navigation
  8. In this 1993 photo provided by the University of Chicago Law School, assistant professor Elena Kagan plays in a softball game. (AP) Back to slideshow navigation
  9. In 1999, Kagan, who earned her law degree at Harvard University, returned to the campus as a member of the faculty. This photo provided by the university shows Kagan in 2003 when she was the law school dean. (Harvard University via AP) Back to slideshow navigation
  10. Former U.S. Supreme Court Justice Sandra Day O'Connor talks to Solicitor General Kagan during the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  11. U.S. Solicitor General Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  12. When Supreme Court Justice Stevens announced his retirement, Kagan's name was quickly floated as a potential replacement. A year earlier, the Senate confirmed her as Solicitor General by a vote of 61-31, with only seven Republicans supporting her. (Jay Mallin / Zuma Press) Back to slideshow navigation
  13. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office April 30, 2010. (Pete Souza / White House handout) Back to slideshow navigation
  14. Vice President Joe Biden, left, and President Barack Obama, right, applaud as Solicitor General Elena Kagan accepts her nomination to the Supreme Court at the White House in Washington on Monday May 10, 2010. (Jim Watson / AFP - Getty Images) Back to slideshow navigation
  15. Supreme Court nominee Elena Kagan, rides the Senate subway during a day of meetings on Capitol Hill in Washington, D.C., on May 12. (Harry Hamburg / AP) Back to slideshow navigation
  16. Senate Majority Leader Harry Reid meets with Elena Kagan on Capitol Hill on May 12. (Alex Brandon / AP) Back to slideshow navigation
  17. Elena Kagan talks with Sen. Arlen Specter in his office on Capitol Hill on May 13. (Alex Brandon / AP) Back to slideshow navigation
  18. Elena Kagan sits with Sen. Lindsey Graham on May 18 as part of her visits with senators who will vote on her confirmation to replace retiring Justice John Paul Stevens on the Supreme Court. (Mark Wilson / Getty Images) Back to slideshow navigation
  19. Supreme Court nominee Elena Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings on Capitol Hill June 28, in Washington, D.C. Kagan is President Barack Obama's second Supreme Court nominee since taking office. (Pablo Martinez Monsivias / Pool via Getty Images) Back to slideshow navigation
  20. Elena Kagan is sworn in as the Supreme Court's newest member as Chief Justice John Roberts, right, administers the judicial oath, at the Supreme Court Building in Washington, D.C., on Saturday, Aug. 7. The Bible is held by Jeffrey Minear, center, counselor to the chief justice. Kagan, 50, who replaces retired Justice John Paul Stevens, becomes the fourth woman to sit on the high court, and is the first Supreme Court justice in nearly four decades with no previous experience as a judge. (J. Scott Applewhite / AP) Back to slideshow navigation
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