Democrats Look to Kagan Solicitor General Vote for Clues

Posted May 9, 2010 at 1:32pm

Updated: May 10, 9:50 a.m.

Democrats are looking to the bipartisan Senate support Elena Kagan secured for solicitor general last year as an indicator of how she might fare as a Supreme Court nominee. But Republicans are saying, not so fast.

Six Senate Republicans — Sens. Susan Collins (Maine), Olympia Snowe (Maine), Tom Coburn (Okla.), Judd Gregg (N.H.) and Dick Lugar (Ind.) and Minority Whip Jon Kyl (Ariz.) — joined most Democrats in voting for Kagan’s nomination to be solicitor general last March. Kagan, former dean of Harvard Law School, was confirmed on a 61-31 vote.

Seven Senators, including two Republicans, did not vote on her nomination.

Senate Democrats are hoping they will see similar GOP support for Kagan, should Obama tap her to replace retiring Justice John Paul Stevens. Judiciary Committee Republicans Kyl and Coburn, in particular, are high on their radar.

But Republican Senate leadership aides cautioned over the weekend that it would be premature to assume Kagan would win similar bipartisan backing for a lifetime appointment to the Supreme Court.

“A willingness to confirm Kagan for her first job in a courtroom last year is a far cry from voting to put her on the highest court in the land. It simply isn’t credible to suggest that support for a solicitor job should translate into support for a Supreme Court nomination a year later,” a senior GOP aide said.

Although Collins, Snowe, Lugar and potentially Sen. Lindsey Graham (R-S.C.) are viewed as likely Kagan supporters, Republicans have said it is far less likely that Kyl, Gregg or Coburn would vote in favor. And there are several unknowns, such as Sen. Scott Brown (R-Mass.) — whose predecessor, the late Sen. Edward Kennedy (Mass.), was one of four Democrats who didn’t vote on Kagan’s solicitor general nomination.

On the other side of the aisle, most if not all of the 59 Senate Democrats are expected to support a prospective Kagan nomination. However, moderates such as Sen. Ben Nelson (D-Neb.) could come under heavy pressure to oppose any Obama nominee.

Republicans quietly acknowledge that it would be difficult to stop a Kagan nomination barring new revelations about her philosophy or background. Republicans have said they want Obama to pick a moderate jurist who would rule impartially.

Unlike now-Justice Sonia Sotomayor, whose decisions on Second Amendment issues as an appellate judge drew the opposition of the National Rifle Association, Kagan has largely avoided running afoul of the GOP’s ideological base. In fact, Kagan has drawn fire from some liberals for her interpretation of the Constitution, and she even spoke at a dinner held by the Federalist Society, a conservative legal organization.

Even so, Kagan seems to have broad appeal with Democrats, many of whom see her as a reliable, long-term liberal presence on a court that has increasingly tacked to the right over the past several years.

Sources say Kagan’s appeal is that while she leans liberal, she has avoided alienating conservatives. Another bonus, sources say, is adding yet another female to the bench. If she is tapped and confirmed, she would become the third woman on the Supreme Court and the fourth in history.