Elections lend Kagan debate a more partisan tinge

Both sides capitalize on nominee; Sens. McCain, Hatch and Murkowski tout their "no" votes

Published July 13, 2010 6:54PM (EDT)

Republicans running for re-election are coming out early against Supreme Court nominee Elena Kagan. Democrats are using her picture to raise money.

This summer's debate over Kagan's nomination has taken on a particularly partisan tinge because it's taking place just months before fall elections, even though her confirmation is not in serious doubt.

Last year, many Republicans stayed publicly uncommitted for weeks about how they would vote on Justice Sonia Sotomayor, President Barack Obama's first pick for the high court.

This time around, however, with the president's popularity sagging and GOP senators eager to draw strong contrasts with him and other Democrats, several who are facing re-election have been quick to announce their plans to vote "no" on Kagan.

They include Arizona Sen. John McCain, Alaska's Sen. Lisa Murkowski, Sen. Johnny Isakson of Georgia and Sen. Jim DeMint of South Carolina.

All were opponents of Sotomayor's last year when she won just nine Republican votes. But most waited until later in the game to announce how they would vote, including Murkowski, who held out until the day before the roll call.

And Sen. Orrin Hatch, R-Utah, has also been much quicker this year to announce his opposition to Kagan than he was to state his opposition to Sotomayor. Hatch doesn't face voters until 2012, but he's keenly aware that conservatives in his state are in no mood to tolerate lawmakers who side with Democrats, having just turned out fellow Utah Sen. Robert Bennett in a bitter intraparty fight.

"He has very clearly seen where the attitudes of the voters of Utah are right now," said Gary Marx of the conservative Judicial Crisis Network, a group that's pressing Republicans and Democrats from right-leaning states to oppose Kagan.

"What you're seeing is where there are senators and candidates who are closest to the people -- those senators and candidates who are in election races or up for election -- they're the ones that are coming out most strongly against Kagan," Marx said.

Senate Judiciary Committee Republicans on Tuesday requested and won a one-week delay in sending Kagan to the full Senate for a vote -- a routine move by the party out of power to register opposition to a nominee. But barring a surprise development, Kagan, 50, who has served as the Obama administration's solicitor general, is on track to win confirmation by early August to succeed retiring Justice John Paul Stevens and become the Supreme Court's fourth woman.

In a year when job losses and economic doldrums are dominating voters' attention, her nomination is hardly a central issue in most campaigns. But conservative activists have been urging GOP candidates to view a vote on Obama's nominee as yet another chance to register opposition to the president's agenda -- and to a judge they argue would be a rubber stamp for it.

By the same token, Democrats are using Kagan's nomination as a chance to raise money and stoke enthusiasm among the president's supporters. The Democratic Party circulated an e-mail earlier this month that linked to a fundraising appeal bearing a photograph of Kagan and a bumper sticker-style "Kagan for Justice" banner.

Republicans seeking to succeed retiring senators or topple sitting Democrats have also been quick to say they would oppose Kagan if they had a vote. They include Arkansas Rep. John Boozman, running to oust Democratic Sen. Blanche Lincoln; Missouri Rep. Roy Blunt, who's seeking the seat of retiring Sen. Kit Bond; and tea party-backed Marco Rubio in Florida, who is running to succeed retired Sen. Mel Martinez. Former New Hampshire Attorney General Kelly Ayotte and conservative lawyer Ovide LaMontagne, who are vying to succeed retiring Sen. Judd Gregg, also have both said they're against Kagan.

Bond, Martinez and Gregg all broke with their party's leaders last year to back Sotomayor. Ayotte said shortly afterward that she, too, would have backed Obama's first Supreme Court choice.

High court battles in the last 20 years have yielded similarly partisan results, becoming increasingly bitter proxy fights for each party's vision of the role of the courts and opportunities for Republicans and Democrats to appeal to their core supporters on hot-button social issues such as abortion and gun rights.

But Supreme Court nominations before that were not as polarizing; members of the opposing party usually backed the president's choice barring extraordinary circumstances. Hatch, for instance, supported every Supreme Court nominee he voted on for more than 30 years in the Senate -- including Democratic-named Justices Ruth Bader Ginsburg and Stephen Breyer -- until casting his "no" vote against Sotomayor last year.

Times are different now.

Last year marked the first time the politically active National Rifle Association waded into the Supreme Court fray, coming out in opposition to Sotomayor and then, shortly before her confirmation, declaring that it would count senators' "yes" votes against them in their closely watched candidate ratings that go out to millions of gun-owning voters.

This year the NRA moved more quickly, announcing simultaneously that it would not only oppose Kagan but also punish senators in its candidate ratings if they support her confirmation -- a factor that strategists in both parties acknowledge weighs heavily on Republicans and some Democrats from conservative-leaning states. The group said it began circulating a 90-second Web ad against Kagan this week.

"Gun owners in this country and NRA members are not only a loyal voting bloc, they're a very savvy voting bloc, and they are paying close attention to these votes," said Chris Cox, the organization's top lobbyist.

Marx said the NRA grade could put pressure on Republicans and Democrats from conservative states who are facing voters this year, like Lincoln, and even some -- like Alaska's Sen. Mark Begich and Nebraska's Sen. Ben Nelson -- who don't face re-election for another two or four years.

Marx's group, the Judicial Crisis Network, is also running phone banks in South Carolina targeting Republican Sen. Lindsey Graham, a Sotomayor supporter who has signaled he may also back Kagan.

"We know these are the types of folks who are active in Republican primaries -- they're active year in and year out," Marx said.

Graham suggested at Kagan's confirmation hearings, however, that he's more inclined to approach Supreme Court nominations with an eye on another race: the 2008 presidential election that Obama won, thus handing him the power to name justices.

"Elections," Graham told Kagan at the hearings, "have conseqeuences."

By Julie Hirschfeld Davis

Related Topics ------------------------------------------

Elena Kagan Supreme Court