Yesterday, Washington Post columnist E.J. Dionne wrote a post on the paper’s PostPartisan blog about how “logic pointed to choosing [Solicitor General] Elena Kagan” for the Supreme Court and that Kagan was “the obvious choice.” His argument starts off based on the premise that Obama’s next pick is likely to be a non-latina woman, meaning that Kagan is best-fit for the job because she has already been confirmed with 61 votes for the position of Solicitor General. Dionne concluded his post:
We will soon learn how good my logic is.
Well, why wait until the nomination? While we don’t dispute the fact that Kagan would be a great nominee, she won’t help President Obama in “avoiding a major battle,” as Dionne claims. Almost two weeks ago, we wrote about why she isn’t guaranteed a smooth confirmation:
The former Harvard Law School dean received only six Republican votes for her March 19 confirmation as Solicitor General, from Sens. Judd Gregg (NH), Susan Collins (Maine), Olympia Snowe (Maine),Tom Coburn (Okla.), Jon Kyl (Ariz.) and Orrin Hatch (Utah). Thirty one Republicans voted against her – including Sen. Arlen Specter, who is now a Democrat. Conservative groups have alreadycirculated a memo against Kagan and other potential Obama nominees. If she goes before the Senate as a nominee for the Supreme Court, she could lose at least one GOP vote – Kyl’s.
The Arizona Republican said on the Senate floor he supported her nomination because of the written recommendations from promiment conservatives including former Acting Attorney General Peter Keisler, attorney Miguel Estrada and former Solicitors General Ted Olson, Paul Clement and Greg Garre. Kyl emphasized that his vote for Kagan as Solicitor General was for that position only, however, and that he wouldn’t automatically support her for the Supreme Court.
“My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General,” Kyl said on the floor. He added, “If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.”
Coburn, a staunch conservative, did not speak about Kagan’s nomination on the floor. He gave few hints behind his decision to support her nomination when he told the Ada Evening News: “I voted for her because she was qualified.”
Kagan could also have difficulty picking up now-Democratic Sen. Arlen Specter (Pa.), who opposed her nomination for Solicitor General. When he was a Republican, he said he was unable to learn enough about Kagan during the discussions he had with her.
“I’ve gone to some length to try to find out more about Dean Kagan,” Specter said on the floor. “But in the absence of being able to do so and really have a judgment on her qualifications, I’m constrained to vote no.”
Specter also complained that Kagan wasn’t familiar with a lawsuit by victims of the 9/11 attacks against Saudi Arabian officials and business people who were alleged to have helped finance terrorism. Said Specter on the Senate floor: “There has been a lot of information in the public domain that Saudi charities were involved. Fifteen of the nineteen hijackers were from Saudi Arabia. People were murdered. There are claims pending in court. The question is whether the Supreme Court is going to take the case. Well, I wish to know what the nominee for the position of Solicitor General thinks about it.”
Conservatives were upset by Kagan’s opposition to the Solomon Amendment, which required universities receiving federal funds to allow military recruiters on campus. Kagan opposed the amendment because of the military’s “Don’t Ask, Don’t Tell” policy on gay service members. Kagan’s position on the amendment was the chief reason Sen. Jeff Sessions (R-Ala.) voted against her. “I believe her record shows a lack of judgment and experience,” Sen. Jeff Sessions (R-Ala.), said on the Senate floor during debate on her nomination to be Solicitor General.
Here’s the vote tally on Kagan’s March 19 confirmation:
YEAs —61 Akaka (D-HI)
NAYs —31 Alexander (R-TN)
Not Voting – 7 Boxer (D-CA)