With little drama remaining about the outcome, the political theater that will begin today with Elena Kagan’s confirmation hearings is more about positioning for the midterm elections than whether she will be installed as the next Supreme Court justice.
A solid performance by Kagan will assure her confirmation to replace Associate Justice John Paul Stevens, specialists say, given Democrats’ control of 59 Senate seats. And after rounds of careful preparation and rehearsal, the former Harvard Law School dean and current US solicitor general is unlikely to make any fatal mistakes under the bright lights of the Senate Judiciary Committee.
But her public appearance and the opportunity to pose tough questions will give members of both parties a platform to debate their views on a variety of constitutional issues, including the ideological tilt of the high court and competing philosophies about the role of the judicial branch.
By replacing the liberal Stevens, Kagan would not significantly change the court’s political direction. Nonetheless, senators both on and off the committee see oppor tunities to rev up their supporters ahead of the November midterm campaigns.
“It’s probably a done deal,’’ acknowledged Senator James Inhofe, a Republican from Oklahoma who is not a member of the Judiciary Committee, on Kagan’s prospects for confirmation. “But I will use her, if she is confirmed, as an issue.’’
For Republicans, the hearings are an opportunity to remind social conservatives why they should still be excited to vote for their party in a year in which economic issues have dominated.
“Republicans will show them, through their opposition to Kagan, that they’re still with them on the issues they care about, such as abortion and gay marriage,’’ said Larry Sabato, director of the University of Virginia’s Center for Politics.
And for immediate impact on the midterm elections, Democrats see advantages by promoting another woman to the Supreme Court, which would bring the roster to three — Kagan; Sonia Sotomayor, Obama’s previous nominee; and Ruth Bader Ginsburg — the most ever.
Senator Robert Menendez, Democrat of New Jersey and the chairman of the Democratic Senatorial Campaign Committee, said Republicans run the political risk of alienating women if their attacks on Kagan appear over the top, especially after most GOP senators opposed last year’s nomination of Sotomayor.
“I think they’ll have a credibility problem if they can’t seem to accept any woman that’s nominated,’’ he said.
Kagan’s confirmation will unfold in the Hart Senate Office Building, where Sotomayor was confirmed last year. Putting the questions to Kagan will be seven Republicans and 12 Democrats, led by chairman Patrick Leahy of Vermont.
The committee’s one other New Englander is Democrat Sheldon Whitehouse, a former Rhode Island attorney general. Senator Jeff Sessions of Alabama, a former US attorney, will lead the Republican charge.
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