The New Republic

No, I'm sure that the White House will get a 60+ vote cakewalk on Elena Kagan's nomination. Why are people focusing so much attention on this again? Is it because her nomination will change the idealogical balance on the Supreme Court? Is it because she will be a pivotal vote in major judicial battles that will impact the future of American politics or democracy? Is it because the DC press corps needs something to keep them occupied between the end of HCR and Labor Day and financial reform, immigration and environmental issues are not enough? Sure seems like the last one to me.

- wildboy

May 10, 2010 at 3:58pm

I don't think the WH expected a cakewalk, just a few sane Republicans crossing over (the "Republican elites"). Short of nominating Glenn Beck there is nothing Obama could have done to appease Republicans who are toeing the Tea Party line.

- Attrill

May 10, 2010 at 4:03pm

I suspect that in a mid-term year the White House would much rather have the DADT fight that Kagan would bring over the abortion fight that, say, Diane Wood would bring.

- primwallflow

May 10, 2010 at 4:12pm

To call this a "political mistake," Chait needs to make clear two things: (1) What he believes the White House's political objective is; and (2) How a different nomination could have better achieved that objective. (I'm skeptical because if Chait's belief of the administration's political objective is what I think it is, then no conceivable nominee could possibly have better achieved that objective, whereas most actual potential alternative nominees would have raised even more persuasive-to-moderate-voters howling from the right.)

- rhubarbs

May 10, 2010 at 4:18pm

Heaven knows what the WH expects.. not clear they've learned the lessons of the last 16 months. Attrill has it right re the result of ANY Obama nominee, albeit there may be NO sane Repubs. It may end up being the time and opportunity to break the filibuster for once and for all. In fact, the Dems and the Country may be better off if there are no sane Repubs at this time.

- drofnats1

May 10, 2010 at 4:24pm

Nobody is going to filibuster Elena Kagan -- not even close. There might only be 3-4 Republicans who vote for her (Ladies from Maine and some of the lame ducks like Voinovich and Bennett come to mind), but all Republican Senators are not going to vote lockstep to deny her nomination from coming to a vote or even significantly delay her confirmation. The Republicans are dumb but not quite that stupid.

- wildboy

May 10, 2010 at 4:32pm

Its a real indictment (among a thousand other examples) that a "college paper that seems vaguely sympathetic to historical socialism" might increase the intensity of the opposition to her nomination. I don't know the details of the paper in question but most of us have all been college students- we all remember bullshitting some paper at 5 in the morning that its due on. God help any political career I plan on having after my service in the Army is concluded if I have to worry about all the drivel I've written the past four years I've been in college. Re: Wildboy's comment- the GOP, of course, is that stupid! They're facing far right insurgencies everywhere. Every senator with an election in the next four years is going to have a vested interest in opposing her nomination out of simple fear. I still cannot believe Bennett lost a primary. That would be like John Kerry getting primaried out of Massachusetts from the left. Jesus, the GOP has gone insane.

- ruyehara88

May 10, 2010 at 4:41pm

ruyehara, it takes just one Republican defector to defeat a filibuster. Even in light of the fact that the GOP has gone crazy, there is at least one Republican (probably more like 4-5) who don't feel the need to filibuster a moderate, conventionally liberal Supreme Court nominee without a long history of controversial rulings who is replacing another liberal justice. I'll even go out on a limb and name those Republicans who will not support a filibuster unless it is revealed that Elena Kagan worked as a heroin mule for the Taliban or something similar -- Olympia Snowe (who won't fool anyone with a totally unprincipled filibuster); Susan Collins (who is not up for re-election until 2014); George Voinovich (retiring); Richard Lugar (who will probably retire in 2012); Orrin Hatch (who is principled enough not to filibuster mainstream nominees); Robert Bennett (lame duck); Lindsey Graham (principled like Hatch, and an unprincpiled filibuster won't fool anyone anyhow); and George LeMieux (because Charlie Crist be against a filibuster in the race to replace him). Mind you, not all of these people will vote for her confirmation, but they will also not prevent her from coming up to a Senate vote.

- wildboy

May 10, 2010 at 5:03pm

wildboy, you're probably right, but recent events have shown that all those you name are perfectly willing to go along with an unprincipled filibuster if the party bosses order it. Will the GOP leadership attempt a filibuster? Probably not, but if they do, they will probably have the votes for it, at least for a day or two. My guess is that there will be no whipped filibuster, with 37 votes against cloture and 38 votes against confirmation.

- rhubarbs

May 10, 2010 at 5:12pm

rhubs, that sounds about right. There will sound and fury, but in the end she gets confirmed 65-35. I have a hard time getting fired up over this one. Of course, if she DID work as a heroin mule for the Taliban, well, I could be persuaded to support a filbuster. Maybe.

- butchie b

May 10, 2010 at 5:18pm

ruyehara88, the problem with Utah is they have a primary (convention) before the primary, wherein a small majority of the voters selects the nominees who will be in the primary so you can't really say it is the Republican party as a whole that did it, but just some idiots, this non democracy is the same process used in NY. When the Republican party elders did the same in NY, the Conservatives went batshit and nominated a scary looking lunatic, handing the race to the Democrat in the general.

- blackton

May 10, 2010 at 5:42pm

It would be hard to conceive of Bob Bennett being sympathetic to any ueber-right call for filibuster on darn near anything right now. Can't see him holding up this nomination.

- cspencef

May 10, 2010 at 6:01pm

Lesbian lynching. The Christianists have made it clear that's what they intend to do. Is that the "miscalculation" Chait is referring to? Hope not. Of course Republicans will exploit prejudices: race, ethnicity, sex, you name it, that's what they do (and they do it very well). My view is that you call them on it or all of us will end up in Miami.

- rayward

May 10, 2010 at 6:16pm

I know three is the magic number, but tossing "Tea Party Nation has emailed its supporters calling her a 'radical leftist'" in there (as if it is a valid cause of action for the right, rather than a description of an utterly predictable action already being taken BY the right, which has nothing at all to do with Ms. Kagan and everything to do with the office for which she's being selected) makes the whole paragraph go down harder. At this point I feel it is safe to expect knee-jerk opposition to anything Obama might propose by any group with Tea Party in front of its name, and I'm pretty sure the White House is at least that politically aware. If we raise the bar for a shrewd SCOTUS pick high enough that Obama has to get a Tea Party faction on board before he clears it, I'm not seeing any wins on the table.

- austinexpat

May 10, 2010 at 7:22pm

She wrote a college paper that seemed vaguely sympathetic to historical socialism. Tea Party Nation has emailed its supporters calling her a "radical leftist."

When I read the headline, my heart sank. When I read these two sentences, I realised that Chait is in full Crowly-crouch mode. Yet again Obama makes a decision, yet again liberal pundits go into a fetal position while screaming "The End is Nigh". 1. As others have said, if Obama were to exhume Rhenquist and nominate him for Supreme Court janitor, he'd be accused of bringing a radical socialist community fascist leftist abortionist lesbian Kenyan gay somnambulist into the Hallowed Halls of the Supreme Court. I don't even think Glenn Beck would pass muster. Tea-baggers deny his legitimacy ab initio; nothing Obama can do will be right. 2. A college paper on historical socialism, eh? My first political philosophy prof was a Burkean conservative; made the mistake in my first paper of saying something positive about Rousseau. In the next two, I trashed Hegel and JS Mill and ended up with an A in the course. My mentor accused me of intellectual prostitution; I suggested that an A in the transcript would help get me into law school; intellectual honesty when you are a second year political science student and your entire life hanging in the balance was not a luxury I could afford. Should Kagan be judged by what he wrote as an undergrad? heaven help us all ...

- icarusr

May 10, 2010 at 8:45pm

And what's "historical socialism" anyway? Socialism lost in the fog of history? Socialism that bases its philosophy on a theory of historical development? Or a typo for hysterical socialism -- e.g. Mao Tse-Tung in a really bad mood after a failure to achieve orgasm?

- ironyroad

May 10, 2010 at 9:42pm

the clues are in the objections to Kagan's nomination for Solicitor General. lack of litigation, and, now, never been a judge. Jeff Sessions voted no for SG. They refuse to appear insane on C-Span when it comes to SCOTUS confirmations, so look for the "wrong experience" tack. even though Protestants are secretly fuming, they can not use the '6 Catholics and 3 Jews' as an issue. I do think less emphasis in the media (from the WH) should have been on Kagan's persuasive skills, as if Justice Kennedy is a ball of putty in need of Kagan's persuasion.

- K2K

May 11, 2010 at 12:10am

I think "historical socialism" basically means Socialism as it is defined by anyone who believes that words have common meaning based on how they have been used over many decades, if not centuries. Hardcore Conservatives are in the process of redefining what every "historical" term means. Hell, John Calvin has just replaced Jefferson as the exemplar of Enlightenment thought in Texas textbooks. The next step is to make Hitler the great representative of Socialism, and consign men like Otto Wels and other SPD leaders to the memory hole. After reading the previous posts I have to agree with Icarusr that even Glenn Beck would not pass muster, his nomination would just be a way to take him off the air - or maybe it would taint him enough to be rejected by his base. The only thing that surprises me is that I have not seen any mention of Obama "Ramming through Chicago Crony" so far, but I'm sure that will be coming soon.

- Attrill

May 11, 2010 at 2:03am

Uh, guys, can we all point to the section of the Constitution which requires at least 1/3 of the minority party in the Senate to consent to the appointment of a Supreme Court Justice by the President? If we can't, then don't treat the bleatings of Jefferson Sessions or John Kyl about this nomination with any more respect than you would give the views of Bernie Sanders on the Federal Reserve. They won't stop the nomination, they will probably not even delay it beyond a week tops, so let's please all go back to thinking about more serious topics that would actually impact American politics and American society in the here-and-now.

- wildboy

May 11, 2010 at 9:33am

Elena Kagan's senior thesis is titled “To the Final Conflict: Socialism in New York City, 1900-1933”. Sean Wilentz was her advisor. More than 130 pages, certainly not just a "college paper". As the NYT reported, she"used the acknowledgments to thank her brother Marc, whose “involvement in radical causes,” she wrote, “led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”..." Whether the hearings dissect her thesis is not what will be the issue; it will be her family story, most likely her lawyer-activist father. Maybe she can change her name to Marjorie Morningstar...

- K2K

May 11, 2010 at 10:33am