WHAT KIND OF CONFIRMATION FIGHT CAN WE EXPECT?…. This won’t be the first time Elena Kagan has been nominated to the federal bench. Eleven years ago, Bill Clinton nominated Kagan for a seat on the U.S. Court of Appeals for the D.C. Circuit. As was the practice at the time, the Senate Republican majority decided to ignore the nomination — the GOP was trying to run out the clock on the Clinton presidency — and Kagan never received a vote.
The process will likely be more constructive this summer, but how much more?
CBS News’ Bob Schieffer said this morning that he expects a “bitter and vicious” confirmation fight. I’m not so sure. The Republican base will no doubt throw a fit, but that would have been the case no matter who President Obama nominated. Last month, National Review suggested GOP senators prepare to block the president’s choice, no matter who it was. Soon after, Bill Kristol endorsed Kagan, but nevertheless declared, “[M]ost Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote.”
But the same ideologues were making the same kinds of remarks in advance of the Sotomayor nomination, and the confirmation process wasn’t that contentious. It’s an election year, so we’re bound to see at least some additional posturing, and Kagan can count on plenty of rhetorical abuse. But I’d nevertheless be surprised if Senate Republicans launched a full-scale, no-holds-barred political war in the hopes of actually defeating her nomination.
Indeed, there have already been some indications that Kagan may be deemed adequate by the GOP minority. There was this report a month ago, for example.
Sen. Lindsey Graham (R-S.C.), whose backing of Sonia Sotomayor during last summer’s Supreme Court battle was a symbolic turning point for her confirmation, expressed support on Monday for a person atop the president’s short list to be the next Supreme Court Justice.
“I like her,” the South Carolina Republican said of Elena Kagan, the former Harvard Law School dean and current Solicitor General. “I liked her [during her solicitor general confirmation hearings]. I liked her answers.”
The same week, Senate Minority Whip Jon Kyl (R-Ariz.) was asked about the purported short-list, which included Kagan, and whether those names might be acceptable to the GOP. Kyl, a far-right leader, said all of the names were qualified for the high court, and described a filibuster as “unlikely.”
What’s more, when the Senate considered Kagan’s solicitor general nomination, she was confirmed with a 61-vote majority, which included seven Republicans.
I’m not suggesting the confirmation process will be easy; it probably won’t be. But looking ahead, does it seem likely that 41 Senate Republicans will vote in lock-step to filibuster Kagan’s nomination? The process won’t get underway for a while, and it’s impossible to know in advance exactly what will be dug up from her background, but if I were a betting man, I’d say the odds are in her favor.