Will Arlen Specter be the only Democrat to vote against Elena Kagan?

Chris Moody Contributor
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In what turned into a heated exchange Thursday between Sen. Arlen Specter and Supreme Court nominee Elena Kagan, Pennsylvania’s lame duck Democrat showed he would have nothing of her (non)answers to his questions about how members of the court should review the constitutionality of legislation.

Kagan dodged Specter’s inquiries about how she would gauge whether legislation passes constitutional muster, drawing an aggregated response from the five-term senator, who’s switched parties twice since entering politics.

“You have followed the pattern which has been in vogue since Bork,” he said, referring to the practice of Supreme Court nominees remaining type-lipped about their views since Judge Robert Bork took a beating for voicing his opinion and lost the nomination in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further.”

Kagan fired back, saying she would not be able to answer Specter’s questions without knowing more about the specific case.

“I can’t sit at this table without briefing, without argument, without discussion with my colleagues, and say, ‘Well, I don’t approve of that test. I would reverse it,’” Kagan said.

“Perhaps you haven’t answered much of anything,” Specter replied.

Specter, who voted against Kagan’s nomination for solicitor general in 2009 when he was a Republican and lost in the primaries last spring, has little to lose if he opposes her for the slot on the Supreme Court. He told reporters yesterday he was still “thinking” about voting against her.

Regardless, it appears Kagan will receive the nomination when the Senate votes later this month.