WASHINGTON - Unless there’s something big we don’t know — really big — Solicitor General Elena Kagan is going to become the 112th justice of the Supreme Court sometime this summer.
Based on conversations with Republican sources in the Senate, there will be no filibuster, and such an effort would almost certainly fail if the GOP tried it. Based on my current count, at least three Republicans, and maybe one or two more, will end up voting for her, and likely all of the Democrats will.
But that doesn’t mean there won’t be a fight over her nomination.
In fact, there is going to be a nasty one; far nastier than the relatively polite treatment accorded Sonia Sotomayor last year. Here’s why:
The political situation in the country is far different — and far more likely to push Senate Republicans into confrontational mode — than it's been in recent history. President Barack Obama is much less popular than he was when Sotomayor was nominated.
In May 2009, his job-approval rating stood at 66 percent in the Gallup Poll. Now, it's barely cresting 50 percent. He never had much GOP support, and now he’s now lost most independent backing, which is one reason why Republicans are likely to make major gains in the midterms.
Politics has changed in another, equally important way. The Tea Party and its passions have taken hold of the GOP, which is another way of saying that the Washington-based Republican Party is moving, or being pushed, to the right — dramatically.
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The humiliation of Sen. Bob Bennett in Utah — a three-term GOP conservative denied re-nomination by his own local party — is only one example of the current partisan climate.
The farther to the right the GOP moves, the less willingness it will have to vote for any Obama nominee, even one with a hard-to-pin down track record (and reputation for team play) like Kagan.
Tea Party pressure is particularly important in the context of the Kagan nomination when you give it a close eye in the Senate. For example, Bennett’s Utah buddy, Sen. Orrin Hatch, is a key member of the Senate Judiciary Committee, which will conduct televised hearings on the Kagan pick.
Hatch loves to play the role of the reasonable guy, willing to cut deals across the aisle. But Bennett had that reputation, too — which is why he just got whacked. Hatch, who is up for reelection again in 2012, may not want to play the go-between role again.
Republican Sen. Mitch McConnell of Kentucky has never filibustered a court pick and prides himself on levelheadedness when it comes to the judiciary, but he is feeling pressure from his right as well.
His handpicked candidate for the GOP Senate nomination in his state, Trey Grayson, is likely to lose to Dr. Rand Paul (son of Ron), who is Sarah Palin's pick and a Tea Party favorite.
Party leaders like Dr. James Dobson of "Focus on the Family" are siding with Paul, and McConnell is scrambling to build ties to Tea Party-types he refused to take seriously a year ago. He may want to seek favor with them by giving Kagan a hard time.
Kagan doesn’t have a judicial track record, but there is nothing about her that is likely to inspire tea partiers.
The fact that she was a collegial dean of the Harvard Law School — a citadel of establishment evil, as far as Tea Partiers are concerned — isn’t going to help a GOP senator in a red state. She is the very symbol of the academic elite and the Harvard-Yale ascendency, which the GOP already views as anathema in its Obama form.
All of her credentials sound fine in the Democratic universe: clerk for Thurgood Marshall; staffer in the Clinton administration; beloved law professor. But it all sounds like a conspiracy to the Tea Party.
Rush Limbaugh and others have already noted that, if Kagan is confirmed, there will be no Protestants on the court, a demographic group that for well over a century represented the entire court. The Tea Party is not coextensive with the evangelical Bible Belt, to be sure, but there is a strong overlap.
After the news broke late Sunday, I asked Don Stewart, McConnell’s press aide, what he thought would be the course of things. A careful guy working for another careful guy, I expected a vague, respectful response. What I got was saltier. He reminded me that she had been confirmed by a 61-31 vote for Solicitor General last year. “A third of the Senate said just last year that she wasn’t qualified to argue in front of the court, much less sit on it,” he told me. “So that would be a starting point.”
A top staffer for one of the seven Republicans who voted for Kagan in 2009 told me that the earlier vote would mean nothing this time around. “The job is different and the situation has changed,” this staffer said, declining to give her name so she could speak freely. “My guy laments the fact that these nominations have become so political, he really does. But that is the world we have been dealing for two decades now.”
A few Republicans who voted for Kagan last time could do so again. One likely prospect is Sen. Judd Gregg of New Hampshire. He is retiring, and therefore immune from Tea Party threats. More importantly, he is philosophically opposed to blocking presidential court picks. “He thinks that any president is entitled to a lot of deference,” said press aide Laena Fallon.
The “sisters of Maine” — Sens. Olympia Snowe and Susan Collins — are also likely to stick with Kagan, whose elevation would mean three women on the court for the first time in history.
It’s hard to overstate how well-regarded Kagan is in traditional legal circles, including at the one private law firm she worked at, Williams and Connolly in Washington.
But “traditional legal circles” — where people value the Ivies, scholarships to Oxford, and the upper reaches of law schools and clerkships — are worlds away from the one the Senate Republicans are part of now. They’re in the Tea Party.
