Elena Kagan & The 2010 Elections (Notably Specter vs. Sestak In Pa.) : It's All Politics President Obama has nominated Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens. Already Kagan is proving to be a potential issue in the 2010 midterm elections.
NPR logo Elena Kagan & The 2010 Elections (Notably Specter vs. Sestak In Pa.)

Elena Kagan & The 2010 Elections (Notably Specter vs. Sestak In Pa.)

President Obama's nomination of Solicitor General Elena Kagan to fill the Supreme Court vacancy left by John Paul Stevens' retirement gives the president his second opportunity to make an imprint on the court in as many years. 

It also has the potential to shake up the 2010 midterm elections.

The announcement is only some three hours old, and already it's making an impact on several Senate races.

In Illinois, where Democratic nominee Alexi Giannoulias has been on the defensive over his family's failed bank and some questionable loans to some questionable characters while he was a loan officer for the bank, Giannoulias immediately tried to make the Kagan nomination an issue.  He said Kagan's "experience, temperament and demonstrated ability to forge consensus will serve the Court and our nation well" -- no confirmation hearings are needed to him apparently -- and he challenged his Republican opponent, Rep. Mark Kirk, to take a position on her nomination. 

In Arizona, where Sen. John McCain (R) is seeking a fifth term, GOP primary challenger/ex-Rep. J.D. Hayworth opposes Kagan's nomination and challenged McCain to do likewise:

Sen. McCain should know that we don't need a leftist, political activist with no judicial experience on the U.S. Supreme Court.  Were I in the Senate, this nomination would be fought tooth and nail. Sen. McCain owes it to the people of Arizona to stand on the principles of this state and fight this nomination as well.

McCain was one of the 31 Republicans who voted against Kagan as solicitor general in March 2009.

But the Kagan nomination might resonate even more in Pennsylvania, where five-term Sen. Arlen Specter (D) is in a tough battle in advance of the May 18 primary.   When she was confirmed by the Senate as solicitor general in March 2009, Specter -- then a Republican -- voted against her.  Seven Republicans voted for her -- including conservatives Tom Coburn of Oklahoma and Jon Kyl of Arizona.  But not Specter.  He is thus the only Democrat in the Senate who voted against Kagan.

And that has ticked off his primary opponent, Rep. Joe Sestak, who released a statement:

My opponent, Senator Specter, has already made his views about the President's nominee clear by voting against her confirmation to be Solicitor General, even as seven of his fellow Republicans approved her nomination.  I expect Senator Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election, but the people of Pennsylvania have no way of knowing where he will stand after May 18.

Senator Specter's fitness to evaluate Supreme Court nominees is a matter of serious concern. He overstepped the bounds of decency in his persecution of Anita Hill in order to put Clarence Thomas on the court. While campaigning for the Chairmanship of the Judiciary Committee in 2004, he indicated he would provide swift confirmation of President Bush's nominees and, just recently, former Senator Rick Santorum confirmed that he extracted an explicit quid pro quo from Senator Specter that Specter would 'fight for and defend' anyone President Bush nominated in exchange for a political endorsement.

Senator Specter has rightfully said that confirming nominees to the Supreme Court is one of the most important duties of a Senator. The people of Pennsylvania and this country deserve someone they can count on to be objective and act in the best interest of the nation -- not to exploit such an important process for their own political gain.

At the time, Specter said he was voting against Kagan because she didn't give him enough information during her confirmation hearings for him to make a judgment.  He repeated that today:

I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice. I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.

With just over a week to go before the primary, the Kagan nomination could play a major role in whether his long political career continues or not.  It has, writes Susan Davis in the Wall Street Journal's Washington Wire, "provided a primary gift" to Sestak."  The Hill's Alexander Bolton said it "presents a new problem" for Specter.  David Dayen, writing in the Firedoglake blog, says Specter faces a "Hobson's choice" regarding the Kagan nomination:

Previously he’s had no problem shifting practically all of his views to the left side of the spectrum to accommodate his party switch. Two things with respect to the Kagan pick make that difficult: 1) Joe Sestak has effectively positioned Specter as an unparalleled opportunist, and 2) Specter just last year, when he was trying to curry favor with conservatives, voted against Elana Kagan.

As for Specter's argument that Kagan didn't give him enough information to go on during her solicitor general hearings, Dayen adds:

Does anyone think that Kagan will answer basic questions about the Supreme Court in her confirmation hearings? Won’t it follow the exact trajectory of every post-Bork hearing, with nothing of substance discussed?

The best Specter can do is try to float with the “open mind” talk in the week before the primary, and make an argument that her views on executive power and warrantless wiretapping could create a sufficient foundation for his opposition. It wasn’t the rationale before, but Specter really has no choice.

I’m not sure this will work against Sestak, who is perfectly positioned to take advantage of this. And in a week where Specter needs to change the subject, this will probably become the story of the primary.

A similarly harsh view of Specter's vote against Kagan comes from Mike Madden, writing in Salon's War Room blog:

It's going to be tough for him to argue that anything other than political expediency was near the top of his mind in his previous dealings with Kagan. The solicitor general's gig, after all, doesn't come with a lifetime appointment to a nine-member Supreme Court; if she wasn't forthcoming with answers to questions about judicial philosophy, that didn't seem to bother Republicans like Jon Kyl, Orrin Hatch and Tom Coburn (or four others who also supported Kagan), all of whom are far more conservative than Specter is. Or even was.

But then again, Specter's party switch last year was all about political expediency anyway. Voters already knew Arlen was in it for Arlen. The question, a week from Tuesday, will be how much they hold that against him.

Recent polls by Rasmussen and Muhlenberg College indicate that Sestak may have opened up a small lead on Specter.  A new ad by Sestak on Specter's party switch is seen by many neutral observers as being particularly effective.