If Republicans were spoiling for an election-year fight over a Supreme Court confirmation, Elena Kagan is shaping up to be their worst nightmare a stealth nominee with a thin paper trail who so far has been immune to a traditional political messaging war.
Despite the best efforts of Senate Judiciary ranking member Jeff Sessions (R-Ala.) and Minority Leader Mitch McConnell (R-Ky.), Republicans have struggled to find the kind of damning information, embarrassing public statements or controversial decisions that were the centerpiece of their early strategy during last years confirmation of Justice Sonia Sotomayor.
Republicans were holding out hope that Kagans responses to Judiciary Committee questions which were delivered to the Senate on Tuesday and the pending release of about 160,000 pages in documents by the Clinton Presidential Library will provide some ammunition. But at least in the short term, they acknowledged Kagan hasnt had the hard time some had predicted.
Elena Kagan does not have as extensive a record as Judge Sotomayor did, and thats part of the problem, Minority Whip Jon Kyl said.
The Arizona Republican argued that Kagans lack of a paper trail is unusual, noting that he cant recall a candidate whose record is as thin as this nominees, and he said it has left the GOP with relatively little opportunity to gather fodder for their opposition.
Thats in stark contrast to Sotomayors confirmation, when Republicans drew on a wealth of information, much of it public, including clips of her speeches on YouTube. That allowed Republicans to launch a series of attacks in the early weeks of her nomination while GOP staff on the Judiciary Committee combed through Sotomayors paper trail.
As a result, within days of her nomination Sotomayor was hit with a series of broadsides. Perhaps most famous was the sparring over her wise Latina comment, which opened her to attacks on her ability to be impartial. It also tied in neatly with GOP complaints about her involvement with the Puerto Rican Legal Defense and Education Fund.
But aside from a few glancing blows over lack of judicial experience and her handling of military recruiting at Harvard while dean of the law school, Kagan hasnt seen that kind of steady attack.
Its making it difficult for anyone to understand how she would approach judging because she just doesnt have a record that will tell us much about that, Kyl said.
National Republican Senatorial Committee Chairman John Cornyn (Texas) agreed. We dont know very much about her, said Cornyn, who also serves on the Judiciary Committee.
Cornyn pointed to the upcoming release of documents by the Clinton library as a key milestone in the GOPs ability to build a case against Kagan, since it will likely be the best opportunity to dig up information.
There are 160,000 documents that were requested by the White House from the Clinton library documenting her service at the White House as a domestic policy adviser and working in the White House counsels office, Cornyn said.
Republicans gave the Obama administration credit for tapping someone who from all appearances doesnt have much of a record that can be used against her. Cornyn said he believes the White House fully intended to nominate a stealth candidate to avoid the normally rigorous and often painful vetting process nominees undergo.
I think the goal was to find somebody with a very short paper trail and somebody whos very young who would serve for an awful long time, Cornyn said.
So far, only one Senator, James Inhofe (R-Okla.), has announced that he will oppose Kagan.
Another problem for Republicans looking to gain traction against Kagan is that in some respects, the GOP has been its own worst enemy. Almost every time a Member has offered a complaint or concern about Kagan, another member of their own Conference has undercut it.
For instance, Sessions questioned Kagans handling of the military recruitment issue, attempting to paint her as a leader of a movement of university elites hostile to the military during a time of war. But following his meeting with Kagan on Tuesday, Sen. Lindsey Graham, who also serves on the Judiciary Committee, rejected that argument.
I think I understand her position ... [and] I didnt find that to be the case at all, the South Carolina Republican said. Graham also repeated his rejection of another main GOP complaint that her lack of judicial experience makes her unqualified to serve on the court.
I dont think thats a disqualifier at all, Graham said.
And Graham has dismissed complaints that Kagans background might make her too loyal to a Democratic administration.
McConnell has not sought to enforce message discipline on the Republican Conference, and he has repeatedly asked his Members to avoid making statements that would appear to prejudge Kagans nomination one way or the other.
Meanwhile, on Sunday, Kyl joined Sen. Susan Collins (R-Maine) in taking the possibility of a GOP filibuster off the table.
The filibuster should be relegated to the extreme circumstances, and I dont think Elena Kagan represents that, Kyl said.