Solicitor General Elena Kagan’s knack for avoiding controversy, and the public’s attention on the Gulf Coast oil disaster and primary elections, have combined to make her Supreme Court nomination a low priority for Republicans, despite the best efforts of Senate Judiciary ranking member Jeff Sessions (R-Ala.).
Senate Republicans insist their interest in the nomination — and the public’s concern with Kagan — will ramp up in the days and weeks leading to her confirmation hearings June 28. But even they acknowledge she has gotten little attention from their party.
Senate Republican Policy Committee Chairman John Thune (S.D.) called the lack of engagement by most Republicans “the calm before the storm.” But he conceded most Members have been focused on the economy, health care, the Gulf Coast oil spill, primary elections and various political mini-scandals involving the White House.
“She was sort of … overtaken by these events,” Thune said, adding that the White House picked a candidate with little record and no history of major controversial statements or missteps. “For better or for worse, they found someone who’s, one, young and, two, doesn’t have much of a record,” he said.
A veteran GOP aide agreed, arguing that while Sessions has consistently built a case against Kagan over the past several weeks, the lack of a smoking gun combined with the timing of the nomination resulted in little attention being paid to her.
“We have a catastrophic disaster going on in the Gulf of Mexico, and there is little attention being paid to anything else,” the aide said. “There’s nothing that’s going to make anyone set their hair on fire at this point.”
Although his colleagues are focusing on plenty of other issues, Sessions has kept his attention on Kagan. With only occasional forays into immigration or the oil spill, most of Sessions’ floor speeches and other public comments have concerned Kagan ever since her nomination this spring.
Sessions has spent weeks hammering Kagan over her relative lack of experience, arguing it makes it extremely difficult for lawmakers to determine how she will rule from the bench. Additionally, Sessions has taken her to task over her involvement in Harvard Law School’s refusal to allow military recruiters to use certain school resources because of the military’s “don’t ask, don’t tell” policy, arguing it demonstrates a hostility to the military.
But while those arguments hit home with conservative activists, few of Sessions’ colleagues have taken up the cause.
Sessions has also addressed the Republican Conference on the issue several times, most recently during Tuesday’s weekly policy luncheon, and Republicans said he is expected to begin ramping up his efforts in the next several days in preparation for the confirmation hearings.
Republican aides said to expect more buy-in from rank-and-file Republicans and leadership over the coming days as Sessions uses documents from Kagan’s time in the Clinton administration and as a clerk to Supreme Court Justice Thurgood Marshall to argue against her confirmation.
For instance, Sessions will continue to highlight her memos to Marshall on abortion, affirmative action and gun control to “show that she has demonstrated during her time as a Supreme Court clerk a willingness to inject her views into the court room,” a GOP committee aide said.
Sessions will also look to tap into voter angst over the expansion of government and will continue to argue that Kagan will be a liberal “rubber stamp” for the Obama administration’s efforts to expand the “size and scope of government,” a second GOP aide said.
“There’s going to be a lot more engagement on this nomination” in the coming days and weeks, this aide said.
But while rank-and-file Republicans may soon fall into line behind Sessions, not all Republicans are happy with the slow pace of their party in opposing Kagan’s nomination.
Sen. James Inhofe (Okla.) — the first Republican to declare he will vote against Kagan’s nomination — said Tuesday that he is “disappointed” with the handling of the nomination by his GOP colleagues.
The Oklahoma lawmaker said he is particularly upset that the bulk of Republicans who opposed Kagan’s nomination to become solicitor general have not yet spoken out.
“If you opposed her at that level, the bar has to be higher” for a lifetime appointment, Inhofe argued.