In Elena Kagan, the Obama White House has a nominee for the U.S. Supreme Court that is harder to lay a glove on than Muhammad Ali. And they know it.
Top advisers to President Obama exuded confidence on a conference call with reporters Friday, forecasting an easy confirmation for Kagan in the hearing scheduled to start Monday.
David Axelrod, a top political adviser to the president, predicted significant Republican support for Kagan and said that those who don’t vote for her will look foolish.
“I think there will be many Republicans who will vote for this nomination but how many I don’t know,” Axelrod said.
He said that Republican senators should “pay attention to the views of conservative legal scholars and practitioners – some of the leading conservative legal scholars in the country – who have said, ‘Yes, she is qualified, and she will be a great addition to the Supreme Court. And if they don’t they I guess it falls to them to explain why.”
Kagan has been a hard target for the GOP because of the limited paper trail she has left behind. Much of that is due to the fact that she has never been a sitting judge. So while the White House has released thousands of pages of memos and e-mails written by Kagan, there are no legal decisions to look at to discover her legal philosophy or how she might decide certain cases.
Additionally, Kagan appears to have used caution in expressing opinions during her time as a domestic policy adviser at the White House under former President Bill Clinton. No bombshell memos have surfaced as journalists and advocacy groups have combed through her papers.
“From the beginning, from the first day of this nomination, it just feels as if we have an opposition in search of a rationale. And they’ve jumped from one thing to another, never really sustaining the argument,” Axelrod said.
“You see a furious attempt to find some rationale to vote against a nominee who’s extraordinarily qualified, very much in the mainstream of judicial thought,” he said.
Kagan’s politics are obviously to the left. Kagan worked for the Clinton White House and then was nominated to argue cases before the Supreme Court as solicitor general by Obama. During the Bush years she served as dean of Harvard University’s law school. It was there that her strong support for gay rights led her to make one of the most controversial decisions of her career, banning military recruiters from using certain offices on Harvard’s campus in protest of the Pentagon’s “don’t ask, don’t tell” policy.
Republicans pointed to polling that shows that high numbers of Americans think the court is already liberal and should become more conservative. But while a Pew poll showed that only 33 percent of Americans think Kagan should be confirmed compared to 50 percent who supported Obama’s first nominee – Justice Sonia Sotomayor – the main reason for that was because almost 50 percent of respondents said they didn’t know.
The apathy reflects the extent to which the president has avoided making this Supreme Court nomination process – which is usually a political knife fight – as much of a nonfactor as possible in an election cycle that is already trending in the wrong direction for his party.
Antonia Ferrier, spokeswoman for Sen. Orrin Hatch, Utah Republican, called Axelrod’s remarks “unfortunate.”
“The Supreme Court confirmation process is one of the most solemn duties of the Senate. There’s nothing political in trying to determine whether Ms. Kagan cares more about the judicial process or political results,” Ferrier said.