The delaying tactics have proved so successful, despite the Democrats' substantial Senate majority, that fewer than half of Obama's nominees have been confirmed and 102 out of 854 judgeships are vacant.

Forty-seven of those vacancies have been labeled emergencies by the judiciary because of heavy caseloads.

Even some Republican senators have complained. Sen. Lamar Alexander took to the Senate floor in July to plead with his own leaders for a vote on an appeals court judge supported by Alexander and fellow Tennessee Republican Sen. Bob Corker.

With Congress returning Sept. 13 for a session shortened by members' desire to campaign for re-election in November, there's little time to reverse the trend. Some say there's little chance of reversing it as polls show a rising chance the GOP will capture the Senate, which could stiffen GOP resistance to confirmation votes.

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The Maine lawmaker said in a statement Friday that Kagan has the intellect, experience, temperament and integrity to serve honorably on the high court.

Collins' announcement makes her the third Republican to break with her party to back President Barack Obama's nominee to succeed retired Justice John Paul Stevens.

GOP Sens. Lindsey Graham of South Carolina and Richard Lugar of Indiana did so earlier this week.

Collins says she doesn't agree with some of Kagan's positions, such as on gun rights, but believes she deserves to be confirmed based on her record, character and promises to stick to court precedents.

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Republicans brought Marshall up 35 times yesterday, with unrepentant racist scumbag Jeff Sessions and Arizona's Jon Kyl leading the charge against that terrible activist liberal judge who hated the Constitution. (Later, asked to name any single Marshall decision or opinion they disagreed with, Sessions and Orrin Hatch and Tom Coburn could not, really. Because that would've given away the game.)

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Perhaps it's naïveté, but I've been amazed by the outraged objections of many Good Liberals to the mere discussion of Elena Kagan's sexual orientation.  Without realizing it, they've completely internalized one of the most pernicious myths long used to demand that gay people remain in the closet:  namely, that to reveal one's sexual orientation is to divulge one's "sex life."  From the first moment that Ben Domenech wrote his now infamous CBS post mistakenly stating that Kagan is "openly gay" -- something which a slew of Good Liberals at Harvard also long believed -- the furious reactions have been extremely eye-opening about how many people continue to equate sexual orientation with one of those dark, sexualized topics that all polite and decent people should be willing to avoid. 

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Although the job is an important one -- indeed, the only specific member of the House with a constitutionally-designated special position -- it's still an ignominious fate that waits for most speakers. After all, although speakers might imagine themselves as national politicians, and counterweights to the president, they're only ever elected by one district. And, of course, the speaker is also elected by the House, which is a pretty consistently unpopular institution. No wonder Foley and Hastert faded away. There's just no public appetite for them, no avenue by which they might get into the national popular imagination and stay.

And this, I think, is the best way to understand Newt Gingrich's regrettable career since he left the House in the late 1990s. Gingrich has always thought of himself as a world-historical figure and leading intellectual light of his age. So he's built a whole way of life around not turning into Rodney Dangerfield. The very last thing he wants is the fate that probably awaits him in the end: berating rooms of ignorant kids about how he gets no respect. It'd be classic tragic irony if it weren't, in fact, pretty comical.

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In an effort to break through the mass of coverage, I did want to highlight three points that have gotten some attention, but less than they deserve, because they have the chance to shift the dynamic of the nomination. None will determine whether Kagan will be confirmed, but each is likely to take on more prominence in the coming weeks and could shift some Republican votes.

First, as Nina Totenberg reported, Kagan signed this letter in 2005 strongly protesting Sen. Lindsey Graham's amendment to limit the Guantánamo Bay detainees' access to federal courts. This is far more direct evidence of Kagan's views on executive powers in foreign affairs than the isolated statement in her confirmation hearings that has been invoked as supposedly showing her support for Bush-era policies. The letter should assuage liberal opponents, but raises the question whether Graham and other moderate Republicans may vote against her.

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And look who's weighing in! America's foremost authority on heterosexuality:

Another friend, former New York Governor Eliot Spitzer, a member of Kagan's social circle at Princeton University, wanted to make the same point as Walzer. "I did not go out with her, but other guys did," he said in an email Tuesday night. "I don't think it is my place to say more."

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In the pundit class, though, there was no better representative of Lieberman-ish would-be machismo than Peter Beinart, then an editor at the New Republic. (TNR, in fact, endorsed Lieberman in the 2004 Democratic primaries, although he had already thoroughly embarrassed himself by that point. Honestly, who tries to suck up to the other party’s nominee while running in a primary campaign to oppose him? Madness.)

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As I've said, I tend to be very conservative about institutional design. I'm suspicious of Seligism -- Bud Selig, the current baseball commissioner, is constantly supporting changing long-standing design because some minor flaw turned up, without stopping to consider how various portions of the design are interrelated, or that minor flaws are inevitable regardless of design. I'm even more suspicious of those who turn frustrations with losing in a democracy into enthusiasm for changing the system. On the other hand, I'm not against all reform. Serious institutional breakdown, especially with a good case for inherent design flaws, should be met with reform -- the current most obvious case within American politics is California, with its impossible budget politics and destructive initiative process. Another reason to support reform is when the underlying reality that the rules are designed for changes, so that stable rules yield an unstable political system.

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Mike Madden already took the RNC to the woodshed yesterday over this ridiculous argument. (Even in backtracking, the RNC seemed to dismiss, or not know about, Marshall's crucial role in overturning segregation, as lawyer for the NAACP.)

But this is just the latest in a long line of incidents in weird fetishism for the Constitution on the right. Just yesterday, the National Organization for Marriage put out a weird statement about our "beloved Constitution" -- as if it's the family golden retriever.

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Brian Brown, President of the National Organization for Marriage: "There is no right to gay marriage in our beloved Constitution."

Sounds like they're in perfect agreement, right? (Except for the fact that Brown talks about the Constitution like he wants to gay-marry it?)

But today NOM sent out a press release headlined, "A Vote For Kagan Is A Vote For Gay Marriage."

NOM's proof? The brief Kagan filed in support of the vile Defense of Marriage Act did not support NOM's favorite patently ridiculous justification for the denial of marriage rights to LGBT couples: "that [heterosexual] unions uniquely protect children by encouraging responsible procreation." I think even this conservative Supreme Court would find that risible as a "key legal defense."

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Allen and Sawyer talked about Elena Kagan, Barack Obama's new nominee to the Supreme Court. Allen and Sawyer had a serious, wide-ranging conversation about Elena Kagan's judicial philosophy, intellectual history, her perception of the limits of executive power during wartime, and the merit of lifetime appointments to the nation's highest court.

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There is no doubt that Ms. Kagan possesses a first-rate intellect, but she is a surprising choice from a president who has emphasized the importance of understanding "how the world works and how ordinary people live." Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the DC Beltway. These are not places where one learns "how ordinary people live." Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.

Sen. John Cornyn, R-Texas, speaking Oct. 27, 2005, on the nomination of then-White House counsel Harriet Miers to the Supreme Court, after he was asked whether the failure of Miers' nomination showed that it would be "impossible" for people who hadn't served as judges to get onto the court:

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"Elena is clearly a legal progressive," Vice President Biden's chief of staff, Ron Klain, told reporters in a briefing on the nomination Monday morning, after I asked him to characterize her judicial philosophy. "She is someone whose scholarship has won praise from both those on the progressive side and those on the conservative side for its thoroughness and its practicality."

Those two sentiments don't necessarily go together, so another reporter asked what Klain meant when he declared her to be "clearly" a progressive. His answer: 

I think Elena is someone who comes from the progressive side of the spectrum. She clerked for judge [Abner] Mikva, clerked for Justice [Thurgood] Marshall, worked in the Clinton administration, worked in the Obama administration. I don't think there's any mystery to the fact that she is, as I said, more of the progressive role than not. 

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Richard Shelby (Alabama)
Lisa Murkowski (Alaska)
John McCain (Arizona)
Johnny Isakson (Georgia)
Mike Crapo (Idaho)
Chuck Grassley (Iowa)
David Vitter (Louisiana)
Richard Burr (North Carolina)
Tom Coburn (Oklahoma)
Jim DeMint (South Carolina)
John Thune (South Dakota)

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Seven Republicans voted to confirm Kagan as Barack Obama's solicitor general: Oklahoma Sen. Tom Coburn, Maine's Olympia Snowe and Susan Collins, New Hampshire's Judd Gregg, Jon Kyl of Arizona,  Orrin Hatch of Utah, and Indiana's Dick Lugar.

But the original support of these Republicans won't preclude them from attacking Kagan as a fine solicitor general who would be too radical for the Supreme Court.

Hatch -- who, a year ago, called Kagan "a brilliant lawyer" -- is opening the door to opposition:

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(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan's record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): "Blank Slate."

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In the last couple of weeks, after Salon's Glenn Greenwald linked to this post by Duke University law professor Guy-Uriel Charles raising questions about the minority hiring rate at Harvard Law School when Elena Kagan was dean there, White House officials started circulating a set of talking points pushing back on the criticism, sending it out to various groups allied with the administration.

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