Kagan Set to Win Confirmation Easily

Washington Matters

Kagan Set to Win Confirmation Easily

Barring a big surprise, she'll sail through the Senate with 70 or more votes.

Expect the usual thunder but no lightning strikes in the Senate Judiciary Committee hearings that start Monday and the subsequent full Senate debate on the nomination of Elena Kagan to the Supreme Court.

Although sharp questioning about her judicial temperament and legal opinions on social policy is a given, Kagan would have to stumble badly to see her nomination derailed. That doesn’t seem likely, given her history. A bright and supremely accomplished legal scholar and practitioner in the highest circles of the legal world, she easily navigated the confirmation process when named solicitor general by Obama last year. With her experience at the Justice Department and as dean of the Harvard Law School, Kagan is bound to demonstrate broad understanding of constitutional law, separation of powers, legal precedent and congressional intent on a broad range of issues. Her testimony will be almost academic. She’ll steer clear of the big minefields, probably offering only scant and implied indications of how she would vote on the court.

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Like the justice she’ll replace, John Paul Stevens, Kagan will be part of the court’s liberal minority. But Obama is hoping that Kagan’s personal rapport with Justice Antonin Scalia and others will allow her to be a consensus builder, having influence beyond a single vote. Still, the Court’s majority will remain conservative and pro-business.

Kagan’s aim, like so many modern Supreme Court nominees, is for the hearings and Senate debate to be as noncontroversial as possible. No sword clashing, á la the failed Ronald Reagan nomination of Robert Bork, over the role of the judiciary and federal judges in national policy and federal overreach in the states. No full-blown abortion rights, affirmative action, gay rights or illegal immigration debate will unfold with Kagan -- even as some Republicans try to lure her on such subjects.


Helping her, in some respects, is all of the other news drawing attention away from her nomination, including the Gulf of Mexico oil spill, the Afghanistan military command and mission and the economy. Republicans are not gunning for a knock down debate over Kagan. Expect some to throw her own words back in her face -- she has written articles urging nominees to be more forthcoming. She’ll be forthcoming only with extreme strategic care.

The biggest point of controversy is likely to involve her role in limiting military recruiting on college campuses because of the Pentagon’s “Don’t Ask, Don’t Tell” policy. But expect Kagan to offer a carefully worded, technical defense of the position she took while at Harvard. She’ll deflect criticism from Republicans questioning her support of the military by saying she supports robust military campus recruiting nationally at public and private schools. That may not be enough to persuade some Republicans. They’ll say she is hedging.

She’ll avoid offering her personal opinion on the Court’s decision early this year that eased restrictions on corporate- and union-funded campaign advertising, for instance. She argued before the Court against lifting the restrictions, but look for her to say she was acting in capacity of the solicitor general, working in behalf of a client (the administration) and not speaking for herself. Republicans strongly support the Court’s decision to lift political advertising restrictions, especially on corporations. Democrats strenuously oppose the decision and have drafted legislative proposals similar to the House-passed bill to force corporations to fully campaign expenditures, although there’s little chance such a bill will be enacted soon.

She’ll also be on the spot for other Court decisions, including ones that will be handed down on the same opening day of her hearings June 28, the day the court wraps up its term. Among the big decisions is a case on the constitutionality of the Public Company Accounting Oversight Board established by the Sarbanes-Oxley Act passed in the wake of the Enron scandal. If the public board is struck down by the court, Democrats will call it further evidence that the Roberts Court is pursuing an activist, pro-business agenda. Another hot-button decision pending involves whether to lift a citywide handgun ban in Chicago. And yet another case Kagan will be asked about involves whether a public school can deny funds to some religious-based student groups.


Figure on a couple of days of hearings and a week of committee deliberation followed by Senate floor debate and confirmation after the July 4 recess. Democrats have a 12-to-7 majority on the committee.

There’s no doubt Kagan will get the Judiciary Committee’s nod, and it’s even likely there be some, albeit limited, Republican support, such as from Lindsey Graham of South Carolina, Chuck Grassley of Iowa and possibly Orrin Hatch of Utah.

When the nomination hits the Senate floor in late July, odds are every one of the 59 Democrats and about one-third of the 41 Republicans will vote to confirm her.