Fearful GOP Incumbents May Go To The Mat On Kagan

Under normal circumstances, Elena Kagan would have little trouble being confirmed as the fourth woman in history to serve on the U.S. Supreme Court.

In all likelihood, she would receive as many Republican votes as she got last year in winning confirmation as U.S. solicitor general. Kagan got seven in that round. And Justice Sonia Sotomayor got nine Republican votes on her way to the high court in the summer of 2009.  

But not this year. We may now see Republican support for Kagan dwindle to nearly nothing in the election year atmosphere of 2010. And some are urging the Senate's minority Republicans to mount a filibuster against her.

How have times changed so quickly? Talk to Robert Bennett, the three-term Republican senator from Utah who will not be back next year. Bennett went home last weekend for the state party convention and finished third behind two men who had never run for office before. As a result, the incumbent will not even be on the ballot when Utah holds its primary election next month.

Bennett, 76, had become a target for anti-Washington sentiment in his home state. A lifelong conservative and a Mormon, Bennett found himself tarred with Big Government and Wall Street because he voted for the bank rescue urged by President George W. Bush and the entire economic policy establishment in October 2008.   

The scandal-free Utahn, who last won re-election with nearly 69 percent of the vote, was also pilloried for his powerful position on the Senate Appropriations Committee, which spends money, and for negotiating with a Democrat on a health care bill that went nowhere.  The millstones that brought Bennett down were not only his office and career but also his specific efforts to legislate responsibly and cooperatively.

No other Republicans in the Senate face nominating systems that are likely to bring them to grief this year.  But virtually all Republicans are looking over their shoulders at the movement known as the Tea Party and the implacable ire of its activists.  

These highly energized and conservative populists have driven Florida Gov. Charlie Crist out of his state's GOP Senate primary and may well defeat the Republican establishment candidate, Trey Grayson, later this month in Kentucky's Senate primary.

If Kagan should become an issue for these candidates in the days ahead, it could force the GOP in Washington to harden its line against her.  The activists of the right are more in charge of the Republican strategy in Washington right now than the party's congressional leaders.  So if the latter want to stay in some semblance of command, they must lend an ear to the rank and file.

By the same reasoning, Republican candidates for office this fall can ill afford to ignore the certain trumpet being sounded on their right.  

Kagan may not matter as much to the Tea Party as, say, deficit spending, health care or the immigration issue. That means it may be enough for most Republicans to oppose her or say they would, without going to the extreme means of a filibuster.  

But, then, is the filibuster really so extreme anymore? When it meant getting out the cots and talking all night, perhaps. But now? Now that it's all done virtually and the Senate has cloture votes almost as routinely as quorum calls?  Now, when the threatened filibuster known as a "secret hold" blocks scores of nominations at once?

Looking past the financial reregulation bill now on the floor, we can expect nearly everything of importance the Senate does for the rest of this year to be filibustered — including climate change and immigration. So filibustering Kagan will contribute to the image of the GOP as obstructionist.

But so what? Some in the GOP may chafe at being called the "party of no," but these days those on the right who are most on the march are glad to wear that label as a badge of honor.

At most times in our history, clearly qualified nominees with presentable credentials for the high court — as jurists, legislators or political figures — have been confirmed with little struggle. In 1986, Justice Antonin Scalia could be appointed by President Ronald Reagan and confirmed 98-0, even in the middle of an election year.

But change came in 1987, when Reagan tried to install Robert Bork alongside Scalia. Democrats had just taken over the Senate and wanted a chance to resist Reaganism. Bork lost in the Judiciary Committee and in the full Senate as well.  
Since then, many conservatives have been spoiling for a chance to even the score.  Republicans did not choose to contest the nominations of Justices Ruth Bader Ginsburg and Stephen Breyer in the early 1990s, and President Clinton got no later chances to fill vacancies.

The next Democratic nominee was Sotomayor, and her case was complicated by her status as the first Latino appointee, and by the newness of the Obama regime. Neither restraint is present this time around.

We may find that, in our time, the prospect of denying a president his choice for the Supreme Court is too tantalizing to rule out.  And even in failure, taking the fight to the max might look irresistible.

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