Lessons of Kagan's Confirmation

What it reveals about the Supreme Court and the Senate

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The Senate has approved Elena Kagan's Supreme Court nomination by a vote of 63 to 37, making her the fourth female justice in the court's history. Here are the predictions for Kagan's career on the bench.

  • What Issues She Will Face First  The New York Times' Carl Hulse writes, "is likely to confront an array of divisive issues in coming years, like same-sex marriage, immigration and the federal government’s role in health care. Among the cases she is expected to sit in on when the new term starts in October are two major First Amendment clashes: one involving California’s attempts to limit the sale of violent video games to minors, the other on the free speech rights of protesters at military funerals. Because of her role as solicitor general in the Obama administration, Ms. Kagan has already identified 11 cases on the docket for the next term in which she would disqualify herself because she had worked on them for the White House. One concerns the privacy rights of scientists and engineers at the Jet Propulsion Laboratory who object to federal background checks."
  • Now We Will Finally See Her Actual Views on Issues  The Detroit News' Robert Alt and Deborah O'Malley reiterate the long-held concern, among liberals as well as conservatives, that Kagan's thin record make it difficult to know how she would really rule, especially on controversial issues. Now, at least, we will find the answer once she begins ruling. "Thirty-seven senators voted against her based upon concerns that she lacks experience and fears that she would be an activist. The coming terms will let us know if those fears were justified."
  • Won't Alter Court Ideology  The Washington Post's Julie Davis predicts, "Kagan isn't expected to alter the ideological balance of the court, where Stevens was considered a leader of the liberal wing. But the two parties clashed over her nomination and the court itself. Republicans argued that Kagan was a politically motivated activist who would be unable to put aside her opinions and rule impartially. Democrats defended her as a highly qualified trailblazer for women who could bring a note of moderation and real-world experience to a polarized court they said was dominated by just the kind of activists the GOP denounced."
  • Can She Push Back on Conservative Bloc?  Liberal blogger Joe Sudbay writes, "It seems like her life's mission was to secure that job. Now, she needs to use all of her intellectual abilities to fight the Roberts-Scalia-Thomas-Alito bloc. The President will be hosting a reception for Kagan today at the White House."
  • Future Confirmations Will Be Tougher  Politico's Josh Gerstein writes, "Kagan has the dubious distinction of receiving one of the lowest total of 'yes' votes for a nominee during the past three presidencies — and the lowest number of confirmation votes ever for a justice picked by a Democrat. ... That trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster."
  • ...Especially From 2010 to 2012  The Supreme Court better not lose any members during that period, when Republicans are expected to hold the largest proportion of the Senate. The Daily Caller's Curt Levey writes, "the nearly 40 votes against Kagan sends a strong message to the White House that even if Republicans pick up just a few seats in November, a nominee like Kagan can be defeated in the next Congress. That means that Obama will likely be forced to nominate a genuine moderate for the next Supreme Court vacancy – someone like D.C. Circuit Judge Merrick Garland."
This article is from the archive of our partner The Wire.