The Senate Judiciary Committee is expected to approve the nomination of Elena Kagan to the U.S. Supreme Court next week, with a vote expected by the full Senate soon thereafter. Because Democrats hold a Senate majority, there is little doubt she will be confirmed, but the Republican leadership, and some outside groups, are pushing hard to raise the number of no votes.
President Obama's first Supreme Court nominee, Sonia Sotomayor, was confirmed by a 68-31 vote, with all 31 no votes cast by Republicans. Of the nine GOP senators who voted for her, four had already announced their retirement from the Senate, and one of them, Mel Martinez of Florida, left before his term ended.
Both sides know there will be more votes this time against Kagan — but not because of anything she said or didn't say at her confirmation hearings.
Curt Levey, director of the conservative Committee for Justice, concedes Kagan is "probably no worse in terms of judicial activism" than Sotomayor. But, he adds, "it's a different political situation. I think a strong vote against Kagan, perhaps even 40 votes, will definitely send a message about the type of nominee Obama can send to the Senate in the next two years, especially if the Republicans win a bunch of seats."
Levey says there not only will be fewer Republican senators supporting Kagan, but there may be some Democrats from Western and Southern states who oppose her, too. That's because some of these red-state Democrats prize a 100 percent rating from the National Rifle Association, and the NRA, for only the second time in its history, is scoring a Supreme Court vote as a key vote on gun rights.
The first time the NRA scored a Supreme Court vote was the Sotomayor nomination, and it did so reluctantly after Senate Republican leader Mitch McConnell leaned on the organization. This time, the NRA is opposing Kagan with more vigor, in part because the organization has been under fire from some of its conservative political allies, and some of its board members, for "cooperating with the left." The organization, for instance, agreed not to oppose a campaign finance disclosure bill this year after it was made exempt from the law, a deal that infuriated Republicans. So now the NRA is aggressively opposing Kagan, unsatisfied with her repeated statements to the Senate Judiciary Committee that she considers the individual right to bear arms a matter of settled law.
Among the pieces of evidence the NRA see as cause for concern is a memo Kagan wrote as a law clerk for Justice Thurgood Marshall in 1987. Kagan wrote then that she was "not sympathetic" to a challenge to a gun ban brought by a District of Columbia resident who asserted that the Constitution guarantees an individual right to own a gun. Confronted with the memo at her confirmation hearing, Kagan responded, "This was 20 years before Heller. The state of the law was very different."
Indeed, at the time Kagan wrote that memo, even staunch conservatives like Robert Bork and Chief Justice Warren Burger publicly dismissed the notion that the Second Amendment protected an individual gun right. The intent of the Second Amendment, as Bork put it, "was to guarantee the right of states to form militia, not for individuals to bear arms."
Two years ago, however, the Supreme Court, by a 5-4 vote, declared for the first time that the Founding Fathers intended the Second Amendment to protect the individual right to bear arms. So, gun rights advocates now see the courts, as well as the legislature, as a major battleground, on which they do not tolerate obfuscation.
In a website ad, the NRA shows Sotomayor at her confirmation hearing saying she fully appreciates the individual right to bear arms recognized by the Supreme Court, but the ad then observes that once on the court, Sotomayor had dissented when the court majority broadened the right to keep and bear arms.
With ominous music in the background, the voiceover tells viewers, "She said one thing; she did the opposite. Now another Supreme Court nominee from President Obama is making promises. ... We've heard that before. Call your senator. Tell them not to fall for the same trick twice. Tell them to vote no on Elena Kagan."
Searching For A Silver Bullet
Kagan's allies, including some prominent conservative legal scholars, are outraged by these attacks. Harvard law professor Charles Fried served as solicitor general in the Reagan administration. He sees the opposition to Kagan as pure politics.
"First of all, it's an election year," says Fried. "Second, the Upper West Side vote is a great deal less important than the Hispanic vote to the Republican Party. Third, they are in a mood to take scalps."
"This is as good as Republicans can expect from a Democratic president," Fried says.
"She's an independent-minded person. She's shown that over and over again. She will not line up in a predictable way and is much more likely to just call it like she sees it. We're not going to do any better than that."
Republicans, however, continue to search for a silver bullet, most recently sending Kagan a letter about her role providing legal advice on the health care bill. Kagan said at her confirmation hearing that she played no role. And while some Republicans have suggested they simply do not believe that answer, one White House official said this line of inquiry is like "throwing a high pitch at the head of the hitter, just to see what happens."
So far, White House officials say their Democrats seem to be holding firm. But they acknowledge they will lose some of the Republicans who supported Sotomayor. The only GOP senators with no track record on Supreme Court nominations are George LeMieux of Florida, appointed to replace Martinez, and Scott Brown of Massachusetts, a man thought to have national ambitions, but whose home state is also home to Harvard Law School, where Kagan was a beloved dean.