By Jesse J. Holland
and Julie Hirschfeld Davis
WASHINGTON – A key Senate Democrat predicted a vote by early August to confirm Solicitor General Elena Kagan as the next Supreme Court justice, even as skeptical Republicans warned against a rush to judgment.
Judiciary Committee Chairman Patrick Leahy of Vermont called Kagan, 50, a “superbly qualified candidate” who would “obviously” be confirmed this summer before the chamber leaves for a month long break. His panel will hold Kagan’s confirmation hearings.
Republican leaders made it clear, however, that they’re in no hurry to vote on Kagan, whom some of them criticized as insufficiently experienced to serve on the high court.
“Fulfilling our duty to advise and consent on a nomination to this office requires a thorough process, not a rush to judgment,” Sen. Mitch McConnell of Kentucky, the Republican leader, said in a statement. He noted Kagan’s “brief litigation experience,” while promising that his party would treat her fairly.
Kagan, the former Harvard Law School dean nominated by President Barack Obama to succeed retiring Justice John Paul Stevens, has never been a judge. While Democrats touted that background “outside the judicial monastery” as a plus that would bring a diversity of perspective to the Supreme Court, Republicans questioned whether she had the skills necessary to be a justice.
“Ms. Kagan’s lack of judicial experience and short time as solicitor general, arguing just six cases before the Court, is troubling,” said Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican.
Still, barring extraordinary circumstances, Kagan should win Senate confirmation on the strength of Democrats’ numerical advantage. Democrats control the chamber with 59 votes, one short of what they would need to forestall the possibility of a partisan filibuster.
Leahy noted that both Chief Justice John Roberts and the newest justice, Sonia Sotomayor, were confirmed swiftly in time for the start of a new court term. He said the same should be done for Kagan.
“The decisions made at the nation’s highest court affect the daily lives of all Americans,” Leahy said. “Our constituents deserve a civil and thoughtful debate on this nomination, followed by an up-or-down vote.”
To stop her from becoming the nation’s 112th justice, Democrats would have to abandon Obama and his second high court pick or almost all of the GOP senators would have to agree to block a vote on the nomination for more than a year after seven of them voted for Kagan to become the solicitor general.
It’s unlikely that Republicans will unite to try to block a vote to confirm her. But some of her former backers held out the possibility that they might yet turn against her, saying their previous support wouldn’t necessarily translate into votes to confirm her as a justice.
“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” said Sen. Jon Kyl of Arizona, the No. 2 Republican.
Sen. Orrin Hatch, R-Utah, a Judiciary member and another past backer, said Kagan’s “previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her.” Hatch said he was keeping an open mind.
Manuel Miranda, chairman of the conservative Third Branch Conference, said Kagan “shouldn’t be filibustered, she won’t be filibustered.” He said the real question is how much time and effort Republicans put into scrutinizing her.
Obama announced Kagan as his second pick to the nation’s highest court on last Monday. If confirmed, she would join Justices Ruth Bader Ginsburg and Sotomayor in bringing the number of women on the Supreme Court to three, the highest in the court’s history.
Women already represent 31 percent of all sitting justices on state Supreme Courts, according to the National Center for State Courts.
Kagan’s nomination “represents a historic step forward as women continue to take their rightful place on the highest court in the land,” said Nan Aron, leader of the liberal Alliance for Justice.
Kagan will immediately begin courting the votes she needs by calling on members of the Senate, beginning this week.
Not all Democrat-affiliated groups are happy with Obama’s choice. Some are concerned that replacing Stevens — the leader of the court’s liberal bloc — with a moderate like Kagan would have the net effect of making the court more conservative.
“If the president’s nomination of Elena Kagan is successful, the result will move the Supreme Court to the right. Progressives should fight the Kagan nomination,” said Norman Solomon, progressive activist and author of “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.”
The solicitor general known informally as the “tenth justice” represents the United States, including defending acts of Congress, at the Supreme Court and deciding when to appeal lower court decisions.
Beyond Kagan’s work as solicitor general and her time as dean of Harvard Law School, there’s not much material opponents can use to attempt to forestall her confirmation.