Kagan nomination could influence November elections

McClatchy NewspapersMay 11, 2010 

WASHINGTON — Both Democrats and Republicans say they expect Solicitor General Elena Kagan's nomination to the Supreme Court to become an issue in November's congressional elections, even though outside experts say her Senate confirmation is likely to be uneventful.

Indeed, it already has become an election issue in some states.

In Arizona, where incumbent Sen. John McCain, R-Ariz., is fighting for his political life, ultra-conservative GOP challenger J.D. Hayworth is clubbing McCain with Kagan's nomination, challenging him to oppose her.

In Pennsylvania, Rep. Joe Sestak, the Democratic challenger to former Republican-turned-Democratic incumbent Sen. Arlen Specter, is blasting Specter for voting against Kagan's confirmation as solicitor general last year, when Specter was in the GOP.

"Both sides are going to work it," said Brad Coker, managing partner of Mason-Dixon Polling & Research. "She'll get confirmed, but it's a matter of how much hay (Republicans and Democrats) can make on the nomination."

Experts say both parties have something to gain in bringing up Kagan on the campaign trail, though her nomination presents a trickier proposition for some Democrats.

Kareem Crayton, a University of Southern California political science and law professor, said Kagan's nomination could serve as a rallying tool for liberal Democrats — a reminder of what the party can accomplish when it controls the White House and Congress, and what could be lost if Democrats don't go to the polls in force to keep their congressional majority.

However, moderate and conservative Democrats may pass on touting Kagan's nomination on the stump, fearing that her views might not appeal to their supporters.

"It will all be dependent on the (confirmation) hearings," Crayton said. "For conservative Democrats, they will be hopeful that big social hot-button issues don't come out in the hearings, because they could perceived as out of step with constituents, particularly in the South."

Republicans can use Kagan's nomination to rally their base by portraying the former Harvard Law School dean as an Ivory Tower liberal elitist who's out of touch with the mainstream and bent on helping President Barack Obama reshape America to fit his ideology, according to some GOP operatives.

"I do think the Supreme Court is an issue that generally benefits Republicans - and we have to be prepared to use it," said Curt Levey, director of the Committee for Justice, a conservative group. "I do think it's an issue because of the issues in the forefront in the battle over the Supreme Court: national security and gay marriage."

However, some in both parties doubt that Kagan's nomination will have staying power to last through the primary season and November's midterm elections.

Charlie Black, a veteran GOP strategist and consultant, said the economy, unemployment and the size of government are the top-tier issues for voters, who aren't overly concerned about a thus-far non-controversial Supreme Court nominee.

"(Sen. Jon) Kyle, R-Ariz., the Number Two Republican in the Senate, said if he had to guess, she would be confirmed," Black said. "It all depends what's in the record and how she handles the hearings. Over the years, there have been nominees who look good on paper who've talked themselves out of a job in hearings."

Black said Republicans may be able to make an issue of Kagan's limited courtroom experience or highlight GOP-Democratic differences on military issues through her effort to bar military recruiters from campus when she was dean of the Harvard Law School.

"But I'm guessing you won't hear a lot about her in the closing days of the campaign," Black said.

However, voters in some states are getting an earful about her now.

With Pennsylvania's primary next Tuesday, Sestak reminded the state's Democratic voters that Specter didn't support Kagan last year and questioned whether they could trust Specter to vote for her now that he's a Democrat.

"I expect Senator Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election, but the people of Pennsylvania have no way of knowing where he will stand after May 18," said Sestak, who has erased a 20-point deficit in recent weeks to tie or lead Specter in some polls.

Arizona's Hayworth used Obama's selection of Kagan to portray himself as more conservative than McCain.

"Sen. McCain should know that we don't need a leftist, political activist with no judicial experience on the U.S. Supreme court," Hayworth said Monday in a statement. "Were I in the Senate, this nomination would be fought tooth and nail."

McCain voted against Kagan's nomination as Solicitor General last year and hasn't said how he'll vote on her nomination to the court.

"Senator McCain is taking the Senate's role of advise and consent very seriously and is looking forward to examining her record thoroughly," said Brooke Buchanan, McCain's spokeswoman.

MORE FROM MCCLATCHY

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Obama names Elena Kagan as Supreme Court nominee

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McClatchy Newspapers 2010

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