Confirming Kagan

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The Senate Judiciary Committee in the next few minutes will report out the nomination of Solicitor General Elena Kagan to the Supreme Court. Her passage through the committee is all but assured given that Democrats control it by a margin of 12-7. The only bit of news this vote will yield is whether or not South Carolina Senator Lindsey Graham will be the only Republican to vote for Kagan in the committee as he was with Sonia Sotomayor. Graham, in recent weeks, has certainly indicated a fondness for Kagan, leaving open the possibility of his support.

Now, here’s where Kagan’s path to the Supreme Court could get interesting. Pro-life groups have been picketing Senate Minority Leader Mitch McConnell’s offices, urging him to filibuster Kagan. The right has been struggling to make Kagan into the Samuel Alito of the left: a polarizing figure that gins up – and proves lucrative with –the base. Alito, you may remember, was filibustered by Dems at the time. Then Senator Barack Obama voted against cloture, a move that has come back to haunt him as President as Republicans have often cited it in their opposition to Obama’s judicial nominees. If Republicans close ranks, a filibuster could kill Kagan’s nomination. But there has not seemed the appetite, even in this hyperpartisan atmosphere, to take such a drastic step. “After all, elections have consequences,” as Graham said during the confirmation hearings. Graham’s support today would indicate he’d probably vote for her on the floor of the Senate, thereby giving Dems the one vote they need to defeat a GOP filibuster. But it’s also likely that the ladies from Maine and Indiana’s Richard Lugar could also vote for her as they did in her vote to be confirmed as Solicitor General. Finally, another fence sitter could be Massachusetts’s Scott Brown who spoke in support of Kagan, as is traditional for the home state senator, introducing her at the hearings. So, if McConnell does decide to filibuster, the cloture vote would be purely symbolic as, more than likely, Kagan has the votes to be confirmed.

The committee confirmed Kagan 13-6 with Graham voting “aye.”