Despite Republicans' vow that Elena Kagan was in for a tough ride to the Supreme Court, the only lingering drama ahead of Tuesday's Judiciary Committee vote is whether Sen. Lindsey Graham will break GOP ranks to vote "yes" on her nomination.
If the South Carolina Republican does back Kagan, as is expected, her committee vote will likely mirror the vote for Justice Sonia Sotomayor — with Graham joining all 12 Democrats in voting "yes," while the remaining six Republicans, led by ranking member Jeff Sessions (Ala.), vote "no."
Sen. Arlen Specter (D-Pa.) on Thursday dashed GOP hopes that he would vote against Kagan. Before switching parties last year, Specter voted against her nomination to become solicitor general, and he was harshly critical of Kagan during her hearings last month, repeatedly sparring with her for being unresponsive to his questions.
But on Thursday, Specter said in a floor speech, "Ms. Kagan has said just enough to get my vote."
Specter penned an opinion piece in Thursday's USA Today saying he would vote for her nomination but continuing to criticize her for not answering questions on issues including campaign finance reform and the government's wiretapping authority.
Specter, who chaired the Judiciary panel as a Republican, said, "In addition to her intellect, academic and professional qualifications, Kagan did just enough to win my vote by her answers that television would be good for the country and the court and by identifying Justice [Thurgood] Marshall as her role model."
Although they hoped to score more points than they did when Sotomayor sailed through the Senate, there has been little drama. Republicans chalk up Kagan's success to a variety of factors, most notably her thin record — which has not offered much in the way of controversy — her adept handling of the pre-hearing process, her use of humor and rhetorical obfuscation during the hearings to avoid major gaffes, and an often disjointed GOP attack.
[IMGCAP(1)]Kagan has also been lucky. She spent weeks making the rounds on Capitol Hill — a process that typically involves dozens of reporters and camera crews chasing the nominee from office to office — while the nation was focused on the Gulf Coast oil spill. Then, when her hearings began, they were again upstaged, first by the confirmation of Gen. David Petraeus to head the war in Afghanistan and then by the death of Sen. Robert Byrd (D-W.Va.).
But Republicans are vowing to push ahead over the next two weeks in the hopes of limiting GOP defections on her final confirmation vote to a handful of moderates.
Led by Sessions, Republicans last week rolled out a new attack on Kagan, accusing her of being a rubber stamp for the Obama administration's policies and demanding that she recuse herself from numerous issues after she is on the bench, most notably litigation over the health care law.
Sessions said in a floor speech, "I do not believe the president is entitled to launch onto the Supreme Court a political loyalist who will be a legal rubber stamp for anything that gets proposed, whether it's to take over AIG or the takeover of automobile companies or other things that may at some point be decided."
Sen. John Barrasso argued for Kagan to recuse herself in any health care suits.
Noting that Kagan has already recused herself in at least 11 cases in which she had some involvement as solicitor general, the Wyoming Republican said in a floor speech Wednesday: "It seems in a case like this — the area that the president of the United States put all of his credibility and effort into forcing through ... and in my opinion jamming down the throats of the American people — on this issue, if she's already going to recuse herself on 11 [other cases], it seems to me that we should also get that sort of a commitment" on health care.
Republicans and conservative activists have also increasingly focused on Kagan's role in the Clinton-era partial-birth abortion debate, charging that as an adviser to President Bill Clinton, she used her position to unduly influence outside medical groups to endorse the practice. Republicans predicted that abortion, as well as questions about Kagan's beliefs on gun rights, will play a prominent role in Sessions' confirmation endgame.