Kagan’s confirmation tally becomes Hill guessing game

With Supreme Court nominee Elena Kagan’s Senate confirmation all but assured later this week, the only guessing game left is the margin of her pending victory.

Will she do better than President Obama’s first pick for the nation’s highest court, Justice Sonia Sotomayor, who breezed through confirmation with a vote of 68-31, including the support of nine Republicans?

Could she even surpass the 78 votes picked up by Chief Justice John G. Roberts Jr., President George W. Bush’s first Supreme Court nominee? Or will Republicans launch a losing battle against her, as Democrats did with Mr. Bush’s more controversial second nominee, Justice Samuel A. Alito Jr., who eventually was confirmed 58-42?

“I think this is going to be the closest vote of any of the recent four or five Supreme Court nominees,” said Edward Blum of the American Enterprise Institute, a conservative-leaning Washington think tank.

Debate in the Senate is set to begin Tuesday, with a vote expected before senators leave town for their August break at the end of the week.

Mr. Blum said she expects Ms. Kagan will get fewer votes than Justice Sotomayor, and “far fewer” than Chief Justice Roberts.

Ms. Kagan’s dearth of judicial experience gives Republicans and even conservative Democrats - especially those facing re-election this year - a reason to oppose her.

“Because of that, it is a safer bet to vote against than to vote for [her],” Mr. Blum said. “Those that want to see a traditionally minded jurist serving on the Supreme Court feel very uncomfortable voting for someone like Kagan.”

Russell Wheeler of the Brookings Institution, a liberal-leaning Washington think tank, expects Ms. Kagan to pick up between 63 and 65 votes in the 100-seat chamber.

“She’s obviously left of center, but she’s not a flame thrower,” he said. “It’s a little hard to tell because her record is pretty sparse.”

Mr. Wheeler said he would be “very surprised” if Ms. Kagan matched Justice Sotomayor’s 68 votes, especially since conservative Democratic Sen. Ben Nelson of Nebraska has said he will oppose her confirmation.

Mr. Nelson thus far is the only Democrat to say he’ll vote against the nominee, although he said he will join Democrats in voting to limit any Republican filibuster of her nomination because “this nominee deserves an up or down vote in the Senate.”

But as of Monday, at least five Republicans said they will support Ms. Kagan’s Supreme Court bid: Sens. Lindsey Graham of South Carolina, Richard G. Lugar of Indiana, Judd Gregg of New Hampshire and Susan Collins and Olympia J. Snowe of Maine.

Only a generation ago, it wasn’t uncommon for Supreme Court nominees to gain confirmation with unanimous or near-perfect vote counts.

Three of President Reagan’s Supreme Court nominees were confirmed unanimously: Justices Antonin Scalia and Anthony M. Kennedy, and the now-retired Justice Sandra Day O’Connor. So, too, was President Ford’s sole nominee, retiring Justice John Paul Stevens, whose seat Ms. Kagan would take.

President Clinton’s first pick for the high court, Justice Ruth Bader Ginsburg, cruised to confirmation by a vote of 96-3, while his second nominee, Justice Stephen G. Breyer, was confirmed 87-9.

But the nomination of Clarence Thomas by President George H.W. Bush in 1991 began a new era in which successful Supreme Court appointments became significantly more political and partisan, say Supreme Court analysts.

Accusations that Justice-to-be Thomas had sexually harassed a former colleague, Anita Hill, led to a bitter partisan debate and almost derailed his Supreme Court bid. He eventually was confirmed him by a vote of 52-48, the narrowest margin for approval in more than a century.

President George W. Bush’s 2005 nomination of Harriet Miers to replace the retiring Justice O’Connor drew heavy criticism from his own party as well as from liberals concerned over her sparse judicial experience.

Ms. Miers eventually withdrew her nomination. Mr. Bush then nominated Justice-to-be Alito who, after intense partisan wrangling, was confirmed by a vote of 58-42 - the second-lowest on the current court.

“This whole [confirmation] process with the Supreme Court and the Court of Appeals and now at the district court level is just deteriorating,” Mr. Wheeler said. “I suspect that so much of this is tied up not with the merits of the nominees, but tied up with interest-group politics and a lot of other stuff.”