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The Senate Judiciary Committee is expected to sign off on President Obama's nomination of Elena Kagan to the Supreme Court next week, and there is little doubt of her confirmation by the full Senate shortly thereafter. After all, Democrats do hold a majority. Even so, the Republican leadership and some outside groups are pushing hard to raise the number of no votes.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: President Obama's first Supreme Court nominee, Sonia Sotomayor, was confirmed by a 68-to-31 vote, with all 31 no votes cast by Republicans. Of the nine GOP senators who voted for Sotomayor, four had already announced they would not be running for re-election and one of them, Mel Martinez of Florida, left before his term ended.
Both sides know there will be more votes this time against Kagan but not because of anything she said or didn't say at the hearings.
Curt Levey is head of the conservative Committee for Justice.
Mr. CURT LEVEY (Director, Committee for Justice): Is that because Kagan is a worse nominee? She's probably no worse in terms of judicial activism, but nonetheless, I think a strong vote against Kagan, perhaps even, you know, 40 votes, will definitely send a message about the type of nominee Obama can send to the Senate in the next two years, especially if the Republicans win a bunch of seats.
TOTENBERG: Levey says there not only will be fewer Republican senators supporting Kagan, but there may be some Democrats from Western and Southern states who oppose her, too. That's because some of these red-state Democrats prize a 100 percent rating from the National Rifle Association. And the NRA, for only the second time in its history, is scoring a Supreme Court vote as a key vote on gun rights.
The first time the NRA scored a Supreme Court vote was the Sotomayor nomination, and it did so reluctantly, after Senate Republican leader Mitch McConnell leaned on the organization. This time, the NRA is opposing Kagan with more vigor, in part because the organization has been under fire from some of its conservative political allies and some of its board members for, quote, "cooperating with the left."
The organization, for instance, agreed not to oppose a campaign finance disclosure bill this year after it was made exempt from the law, a deal that infuriated many Republicans. So now, the NRA is aggressively opposing Kagan, unsatisfied with her repeated statements to the Judiciary Committee that she considers the individual right to bear arms a matter of settled law.
In a website ad, the NRA shows Sonia Sotomayor at her confirmation hearing saying she fully appreciates the individual right to bear arms.
(Soundbite of website ad)
Justice SONIA SOTOMAYOR (U.S. Supreme Court): I understand the individual right fully that the Supreme Court recognized in Heller.
TOTENBERG: The ad then notes that Sotomayor dissented last month when the Supreme Court broadened the individual right to bear arms.
(Soundbite of website ad)
Unidentified Woman: She said one thing, she did the opposite. Now, another Supreme Court nominee from President Obama is making promises. We've heard that before. Call your senator.
TOTENBERG: Kagan's allies, including some prominent conservative legal scholars, are outraged by these attacks. Harvard law professor Charles Fried served as solicitor general in the Reagan administration. He sees opposition to Kagan as purely political.
Mr. CHARLES FRIED (Former U.S. Solicitor General): Well, first of all, it's an election year. Second, the Upper West Side vote is a great deal less important than the Hispanic vote to the Republican Party. Third, they are in a mood to take scalps.
TOTENBERG: But the drive to gin up votes against Kagan, he says, is foolish.
Mr. FRIED: This is as good as Republicans can expect from a Democratic president. She's an independent-minded person. She's shown that over and over again. She will not line up in a predictable way and is much more likely to just call it like she sees it. Well, we're not going to do any better than that.
TOTENBERG: Republicans, however, are still searching for a silver bullet, most recently sending Kagan a letter asking detailed questions about her role in providing legal advice on the health care bill. Kagan said at her confirmation hearing that she played no role. And while some Republicans have suggested they simply do not believe that answer, one White House official said this line of inquiry is like, quote, throwing a high pitch at the head of a hitter just to see what happens.
So far, White House officials say their Democrats seem to be holding firm. But they acknowledge they will lose some of the Republicans who supported Sotomayor.
The only GOP senators with no track record on Supreme Court nominations are George LeMieux, appointed to replace Mel Martinez in Florida, and Scott Brown of Massachusetts, a man thought to have national ambitions but whose home state is also home to Harvard Law School, where Kagan was a beloved dean.
Nina Totenberg, NPR News, Washington.
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