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Elena Kagan Vote Warns Of Battles To Come

Publication Date: 
August 05, 2010
Josh Gerstein

Professor Pamela Karlan and Lecturer Thomas Goldstein are quoted in Politico on the confirmation of Elena Kagan to the United State Supreme Court. Josh Gerstein filed this story:

Chosen by President Barack Obama for her ability to build consensus on a deeply divided Supreme Court, Elena Kagan didn’t have much of a unifying effect on the Senate.

Though it confirmed her Thursday as the newest justice by a 63-37 vote, Kagan has the dubious distinction of receiving one of the lowest total of “yes” votes for a nominee during the past three presidencies — and the lowest number of confirmation votes ever for a justice picked by a Democrat.

Kagan’s meager tally is five fewer than Sonia Sotomayor last year, 15 fewer than John Roberts got in 2005 and pales in comparison to the 96-3 coronation of Ruth Bader Ginsburg in 1993. That trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster.

“We are well on our way to a huge train wreck,” said Tom Goldstein, a veteran Supreme Court litigator. “I do think this is a corner we won’t be able to turn back [from], or at least there’s no sign the Senate will turn back from, for a long time.” If 60 “yes” votes “is the best anyone is going to have, a Supreme Court confirmation fight could easily turn into thermonuclear war.”

Goldstein said Kagan’s margin is uncomfortably close to the 60-vote threshold the majority party needs to end a filibuster. And if the Democrats lose seats in the midterm election, it could put even more pressure on senators to mount a no-holds-barred battle to keep any nominee from the opposing party off the court.

“There really hasn’t been an all-out filibuster. That’s the last tiny little leg of the stool waiting to be kicked out,” Goldstein said. Given the tit-for-tat nature the confirmation process has become, he said, “Democrats are sure to respond to the way most Republicans approached this.”


But Stanford law professor Pam Karlan is not convinced a Supreme Court filibuster is imminent.


For the Supreme Court, “you get an actual vote — in that sense, it’s working better,” Karlan said. “I think it’s too bad the Senate is so polarized they can’t manage to vote on the nominee of Office of Legal Counsel. All these judges are held up because you can’t get unanimous consent for anything. … That’s terrible.”