Capitol Hill Bureau Chief
There is no question that Elena Kagan will be easily confirmed by the Senate this week to join the U.S. Supreme Court. But in recent days, Kagan has lost a handful of key votes from both sides of the aisle that Sonia Sotomayor secured during her confirmation process a year ago. Several moderate senators say Kagan's limited courtroom experience makes her too much of an unknown to support.
When the Senate voted 68 to 31
to confirm Sotomayor in 2009, every Democrat and nine Republicans backed her, while 31 GOP senators voted no. Among the nine Republicans who supported Sotomayor were Sens. George Voinovich of Ohio, Lamar Alexander of Tennessee, and Kit Bond of Missouri. At the time, the three said they disagreed with Sotomayor's politics, but felt her lengthy experience as a lawyer and appeals court judge made her well qualified to join the high court.
But when the full Senate began debating Kagan's nomination on Tuesday, none of the three said they would vote for the former Harvard Law School dean and current U.S. solicitor general.
"General Kagan has an extremely limited written record, which should make all of us unsure as to what sort of justice she might be," Voinovich explained, as he stunned Senate watchers with his announcement that he'll oppose President Obama's nominee.
Days earlier, Sen. Ben Nelson (D-Neb.), another Sotomayor supporter, said that he, too, was troubled by Kagan's lack of a judicial record, which "makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded."
Alexander, a third senator to support Sotomayor but oppose Kagan, said her role in limiting military recruiters' access to Harvard's office of career services proved to him that Kagan's political opinions would color her legal opinions. "She acted based upon what she thought the law should be," Alexander said.
As late as Tuesday night, several key senators who voted for Sotomayor had not yet announced how they'll vote on Kagan's nomination. Among them: Sen. Blanche Lincoln, an Arkansas Democrat locked in a difficult re-election battle; Sen. Bob Casey, a pro-life Democrat from Pennsylvania; and Bond, who told the St. Louis Post-Dispatch
Tuesday that he is "definitely on the fence" about Kagan.
The Missouri senator said he had asked to meet with Kagan to clarify several issues, but the White House had told him she has been too busy to meet with him. "So apparently, the White House thinks they don't need my vote if they're not going to send her in so I can talk with her," Bond said.
Citing the opponents, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said: "They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution. . . . We need judges and justices who will fairly apply the law and use common sense. . . . It is a standard I believe Solicitor General Kagan has met."
The Senate will continue to debate the nomination on Wednesday, with a vote to take place by the end of the week.