Republicans For Kagan

image6470897_370x278As the week drew to a close, there were signs that the nomination of Elena Kagan to the Supreme Court was actually receiving some positive response in Republican circles:

Washington (CNN) — Supreme Court nominee Elena Kagan received critical cover from moderate Republicans on Thursday on two issues likely to dominate her upcoming confirmation hearings: gays in the military and judicial experience.

Kagan has been strongly criticized by GOP leaders for her efforts to block military recruiters from Harvard University during her time as the school’s law school dean because of the military’s “don’t ask, don’t tell” policy. The policy, opposed by President Obama, prevents gays and lesbians from serving openly in the armed forces.


Massachusetts GOP Sen. Scott Brown — who broke the Democrats’ 60-member filibuster-proof majority by winning the late Ted Kennedy’s seat in January — said after meeting with Kagan that he is satisfied she supports members of the military.

“It was the first question I actually asked her because, having been in the military, I had concerns about [her] position at Harvard,” Brown said.

“It was very clear to me, after we spoke about it at length, that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole. I do not feel that her judicial philosophy will hurt the men and women who are serving.”


Earlier in the day, Maine GOP Sen. Susan Collins said she doesn’t have any concerns about Kagan’s experience. She also said she didn’t see any “extraordinary circumstances” that could lead her to join a potential filibuster against Kagan.

Obviously, is Brown and Collins end up in favor of Kagan’s nomination at the end of the process, that would be sufficient to guarantee her confirmation and prevent any Republican effort to filibuster the confirmation vote. At the same time, it would seem that many of the nine Republicans who voted in favor of the Sotomayor nomination last years — specifically retiring Senators like George Voinovich, Kit Bond, and Judd Gregg, as well as “moderates” such as Olympia Snowe and Lindsey Graham — are likely to be in Kagan’s camp as well. Whether anyone else will join them is a different question.

At the same time the Kagan is receiving positive feedback from moderate Republicans, she’s also getting some surprising support from conservative legal circles:

WASHINGTON — Conservative lawyers and academics are voicing support for Supreme Court nominee Elena Kagan, praise that could soften criticism from the right and provide cover for any Republican senators inclined to vote for her nomination.

The essence of their take on Kagan, the former Harvard Law School dean who now serves as solicitor general, is that she clearly has the smarts to be a justice and has shown an ability to work with all sides on thorny issues.

“She has had a remarkable and truly unusual record of reaching out across ideological divides,” said Michael McConnell, a former federal appeals court judge who was nominated by President George W. Bush.

Longtime Kagan friend Miguel Estrada, whose appeals court nomination by Bush was blocked by Senate Democrats, said, “She’s clearly qualified for the court and should be confirmed. Obviously, she’s a left-of-center academic who never would have been picked by a Republican. But no one can doubt her intellectual accomplishments.”

Former special prosecutor Kenneth Starr, who ran the investigation that led to President Bill Clinton’s impeachment, said charges by some conservatives that Kagan holds extreme views are off-base.

“That’s politics, and unfortunately confirmation politics have been very ugly, with a few happy interludes, ever since the nomination of Judge Robert Bork,” Starr said on MSNBC.

If this were any other year, positive feedback like that from the likes of Estrada, McConnell, and Starr would probably be sufficient to guarantee that Kagan would receive more Republican support than Sotomayor did. In an election year, however, and given the bitter acrimony on Capitol Hill these days, that’s probably unlikely. Kagan will be confirmed, of that there’s little doubt, but she’ll be lucky to get nine Republicans to cross the aisle and support her the way they supported Sonia Sotomayor.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. steve says:

    Volokh made very positive comments on the quality of her work and thought that the quantity was appropriate for her time in academia.


  2. PD Shaw says:

    Normally, I would expect Republicans to make a point of her “leftist” leanings, remind voters that elections have consequences, and largely vote for her. I don’t think that’s because they are necessarily being high-minded statesmen, but because they want want to be able to select their own conservative ideologues. Has the calculation changed? I’m thinking no, but we’ll see.