The Kagan Vote and What It Signifies

Predicting the Senate vote in Supreme Court confirmations is not difficult, either a statistician or any political pundit could make a pretty good guess. Statistically, using the Judiciary Committee vote as a predictor has typically meant that there will be about six "No" votes in the Senate for every negative vote in committee. If Lindsay Graham is the sole Republican committee member to support confirmation, the remaining six "No" votes suggest about 36 "No" votes in the Senate. Were Graham to cast a seventh "No" vote in committee, however, it seems unlikely there would be 42 negatives for Kagan on the Senate floor. This is perhaps the most conservative Judiciary Committee contingent for the Republicans in the voting history of the committee, and unanimous opposition by those committee members does not signal solidarity among all Senate Republicans. The New England contingent of Snowe, Collins, Gregg, and now perhaps Brown will not necessarily follow suit. If those four support Kagan, then the Republicans are poised to cast 35 votes against confirmation. Assuming all Democrats adhere to the party line along with the two Independents, then Kagan will have 65 votes propelling her into the Supreme Court. If she manages to pick up Senators Graham and Richard Lugar of Indiana, then she can accumulate 67 confirmation votes. Sotomayor received 68 last year.

Except for the party leadership, though, such predictions are fairly useless. The vote will be what it is. Assuming, however, these numbers come to pass, what they reveal is a politicized confirmation process, one in which Republicans have come around to the view that they may oppose a nominee on the basis of her political ideology and the anticipated liberal positions she might favor in particular Court cases. Not all opponents will be willing to admit that. A number will couch their opposition in terms of the military recruitment narrative favored by the Republicans, but acceptance of that narrative is itself a function of political ideology. More so than Democrats, Republicans have been trapped by their own rhetoric that pillories any results-oriented approach to evaluating Court nominees. Conservatives are no less results-oriented than the rest of us, but they must couch their opposition in language that suggests they are not driven by ideological concerns. Democrats built their opposition to Robert Bork in 1987 precisely on the basis that he was simply too conservative, "outside the mainstream" being their contribution to the rhetoric that infuses the contemporary confirmation process.

Those who decry the partisanship represented by the forthcoming vote fail to understand that the Court itself is part of the political process and, as such, so too is the nomination and confirmation process. Recognizing this is actually the first step towards creating a more serious dialogue in the confirmation hearing, paving the way for a dialogue on alternative conceptions of constitutional and statutory language, as well as other jurisprudential constructs. Clearly the Court is more constrained than other political bodies, but one cannot ignore the differences between a Justice Scalia and a Justice Stevens and having a discussion that would permit views like their to be discussed and debated in a Senate confirmation hearing would constitute a great exercise in civic education.

Acknowledging political differences does not mean that a senator must always vote his or her partisan preference. Like Lindsay Graham, a bona fide conservative, a senator could reason that Kagan is a liberal and likely to favor positions on cases before the Court that would be at variance with his. However, she's the nominee of a liberal president, she's replacing perhaps the most liberal justice on the Court, and, for a liberal, she seems to possess the temperament, intelligence, professional competence, and integrity that he hopes would characterize both liberals and conservatives on the Court.

Kagan will take her place on the Court, and the Court will be changed to some degree. She is not John Paul Stevens, and as yet, neither we, nor even she, know who Justice Elena Kagan will be.