During the May 1 edition of Fox News' America's Newsroom, while discussing possible replacements for retiring Supreme Court Justice David Souter, Jay Sekulow, American Center for Law and Justice chief counsel and host of the ACLJ's radio show Jay Sekulow Live!, dismissed the possible nomination of Solicitor General Elena Kagan by stating that she “does not have any judicial experience.” Sekulow's comments echo conservative talking points about Kagan obtained by the Politico which claim that her nomination “would be concerning given her complete lack of judicial or appellate experience. She has never been a judge.” However, neither Sekulow nor co-host Megyn Kelly noted that Kagan was nominated to the U.S. Court of Appeals for the District of Columbia Circuit in 1999 by President Clinton and the then-Republican-controlled U.S. Senate blocked her nomination.

As a February 10 Washington Post article reported, “President Bill Clinton nominated her for a spot on the U.S. Court of Appeals for the D.C. Circuit, but the Republican-controlled Senate never brought her up for a vote.” In a September 16, 2002, article, Los Angeles Times staff writer David G. Savage similarly noted of Kagan: “Clinton nominated her in 1999 to the U.S. appeals court in Washington, but Senate Republicans killed her nomination without even giving her a hearing.”

The Politico reported in a February 10 article of Kagan's 1999 nomination:

“There's no doubt in my mind that she would be high in their pecking order,” [Sen. Orrin] Hatch [R-UT] said. “But they've made such a fuss about the need to have judicial experience, and she's had absolutely none. Has she had any experience arguing before the Supreme Court? Not that I know.”

Hatch's comments on Kagan's lack of judicial experience may seem ironic to Senate Democrats; as Judiciary Committee chairman, he declined to schedule a hearing on Kagan's 1999 nomination to the U.S. Court of Appeals for the D.C. Circuit by former President Bill Clinton, thus killing the nomination.

During an October 22, 2003, Senate Judiciary Committee hearing regarding the nomination of Janice Rogers Brown to a Court of Appeals seat, Sen. Richard Durbin (D-IL) said of Kagan's nomination:

I'd like to begin by putting this nomination in historical context. Justice Brown was nominated to fill the 11th seat on the D.C. Circuit Court that has 12 authorized judgeships. But when President Clinton tried to appoint an 11th and 12th judge to this same court, Elena Kagan and Alan Snyder, the chairman of this committee denied them a hearing and a vote. Senate Republicans argued the D.C. Circuit was fully operational with 10 judges. The D.C. Circuit's workload did not justify any additional judges. Since 1997 the D.C. Circuit's workload actually decreased by 27 percent, according to the Administrative Office of the U.S. Courts.

Similarly, during a March 11, 2003, floor debate, Sen. Dianne Feinstein (D-CA) said:

For instance, Elena Kagan was a Clinton nominee to the D.C. Circuit Court of Appeals -- the same circuit to which Miguel Estrada is now nominated. In fact, Ms. Kagan was Miguel Estrada's supervising editor on the Harvard law review, yet Republicans stopped her nomination cold without even getting to the point of a filibuster, or a public accounting of who was for, and who was against, that nominee.

Elena Kagan was never filibustered on the floor, but she was effectively "filibustered'' in committee by one or two Senators who prevented a hearing or a committee vote.

From the May 1 edition of Fox News' America's Newsroom:

KELLY: Now what about Elena Kagan, another woman -- again, he's said to favor a woman for this position so there would be at least two women on the U.S. Supreme Court, as there were when Justice O'Connor was still on there. What do we know about Elena Kagan?

SEKULOW: Well, I mean, she does not have any judicial experience -- not an appellate lawyer yet; now, of course, the solicitor general. But Judge [Sonia] Sotomayor, I would think of the two, meets, as you said, Megyn, both of the -- he gets two for one in that sense. You got a woman, Hispanic, and a sitting judge. So this would be a significant -- significant nomination.

The question is going to be here, will the Republicans on the Judiciary Committee -- with Arlen Specter now switching parties, and the possible head of the Judiciary Committee being someone like Jeff Sessions from Alabama, who is a very tough litigator, as you know -- are they going to put the nominee through the paces? Because the tradition has been, while the Democrats have been very aggressive, when they went after John Roberts and Sam Alito, the Republicans by nature have not been.

KELLY: Right.

SEKULOW: That's why Justice Ginsburg was confirmed, I think, 97-3; Stephen Breyer basically the same thing. Will the Republicans at least put through the constitutional process of advice and consent? That's going to be the question here, because this is, as I said, this is the beginning of the president reshaping the federal judiciary.

KELLY: Well, but what do you hope to see, Jay? Because there was a time when, in defense of those liberal senators as well --

SEKULOW: Yeah.

KELLY: -- they also rubber-stamped the confirmation process. If the justice obviously had the qualifications, like Justice Scalia was confirmed unanimously, and everybody knew how far to the right he was.

SEKULOW: Sure.