Elena Kagan Will Be Confirmed by a 65–35 Vote

By
Photo: Chip Somodevilla/Getty Images

Anything can happen in the confirmation hearings for Elena Kagan this summer. Maybe she'll foolishly promise to be an activist judge, or she'll reveal that she disagrees with Brown v. Board of Education, or we'll find out that she hired an illegal nanny. But probably not. So, assuming that the confirmation hearings just won't matter that much, we can make an educated guess right now about what the vote will be to confirm Kagan. It's safe to count all the Democrats and Democrat-aligned Independents as "yeses," since only one senator (former Rhode Island Republican Lincoln Chafee) has voted against a Supreme Court nominee of his own party in the past five Supreme Court confirmation votes. We can also assume that all of the Republicans who voted against Kagan for solicitor general a year ago will vote "no" again — someone could surprise us, but if they didn't think she was fit for that post, they almost certainly wouldn't vote to confirm her for a lifetime appointment on the nation's highest court.

Seven Republicans did vote for Kagan, though: Susan Collins, Olympia Snowe, Richard Lugar, Orrin Hatch, Jon Kyl, Tom Coburn, and Judd Gregg. To that group we'll also add Scott Brown, who wasn't in the Senate yet, and Lindsey Graham, who didn't vote on the solicitor-general confirmation but did vote for Sonia Sotomayor. These senators are the most likely to support Kagan this time around. To determine which of them will ultimately vote to confirm, we looked at their recent public statements, their past votes on Supreme Court justices nominated by Democratic presidents, maverickiness (loosely defined as propensity to break ranks with their party), and political endangerment (on a scale of 0 to 10, 0 being no concern about reelection and 10 being utmost concern). Here they are, in descending order of the most likely "yes" votes. Our final vote prediction: 65–35.

Susan Collins:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: In a statement, Collins said Kagan “has an impressive résumé of dedicated public service and strong legal credentials but she does not have extensive writings by which one can assess her judicial philosophy.”

Supreme Court Voting History: Yes on Sotomayor.

Maverickiness: Off the charts. Has only voted with the GOP 66 percent of the time since the start of 2009, and is seen, along with Olympia Snowe, as the Democrats' friendliest Republican.

Political Endangerment Factor: 2 out of 10. The tea party is making some moves in Maine, but Collins won’t even have to worry about a primary until 2014, when she’s up for reelection. It’s useless to look that far ahead.

PREDICTION: Yes.

Photo: Alex Wong/Getty Images

Olympia Snowe:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Snowe said in a statement that Kagan “appears to present strong intellectual credentials,” and that she looks forward to “learning more about her experience and expertise, and … her judicial philosophy.”

Supreme Court Voting History: Yes on Sotomayor.

Maverickiness: Like Collins, Snowe only votes with her party about 66 percent of the time, and based on her 2009 votes is the most liberal member of the Republican Caucus, even falling to the left of a couple of Democratic senators, according to the National Journal.

Political Endangerment Factor: 5. Snowe, up for reelection in 2012, may be less popular with Republicans than she is with Democrats and Independents, making her vulnerable to a primary challenge by a more conservative Republican. However, she’d also have a good shot with an Independent bid, à la Joe Lieberman and Charlie Crist.

PREDICTION: Yes.

Photo:Chip Somodevilla/Getty Images

Richard Lugar:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Lugar has been about as neutral as a senator can be, only saying through a spokesperson that he’ll “look closely” at how Kagan “responds to lawmakers during her confirmation hearing” before making his decision.

Supreme Court Voting History: Yes on Sotomayor (and was the first Republican senator to declare support for her). No on Stephen Breyer. Yes on Ruth Bader Ginsburg.

Maverickiness: Lugar is one of the most moderate Republicans in Congress, according to the National Journal, and votes with Democrats more often than all but six of his GOP colleagues.

Political Endangerment Factor: 2. Lugar is up for reelection in 2012, but hasn’t announced yet whether he’ll run or call it quits after 35 years in the Senate. Either way, he’ll probably have no problem winning if he decides to run — the Democrats couldn’t even muster up an opponent for him in 2006.

PREDICTION: Yes.

Photo: Mark Wilson/Getty Images

Lindsey Graham:
Voted for Kagan As Solicitor General?: No, didn’t vote.

Recent Public Remarks on Kagan: In a statement, Graham praised Kagan’s “strong academic background in the law” and said he’s “been generally pleased with her job performance as Solicitor General." After meeting with her on Tuesday, Graham said they'd "found common agreement" on many issues, and that he wasn't concerned at all that she was never a judge.

Supreme Court Voting History: Yes on Sotomayor.

Maverickiness: Graham usually votes with his party, but has become the Obama administration’s lead Republican ally — and sometimes only Republican ally — on the highly partisan issues of climate-change legislation and immigration reform.

Political Endangerment Factor: 5. The Republican Party in South Carolina has been none too happy with Graham, and three county parties have even officially censored him for his cooperation with Democrats. But he’s not up for reelection until 2014, and a lot can happen in the interim.

PREDICTION: Yes.

Photo: Mark Wilson/Getty Images

Judd Gregg:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Like Lugar, he merely stated that he looks forward to “carefully reviewing [Kagan’s] record and qualifications for this position.”

Supreme Court Voting History: Yes on Sotomayor. Yes on Breyer. Yes on Ginsburg.

Maverickiness: Has voted with the GOP only 82 percent of the time during the 111th Congress, which sounds like a lot but actually makes him the sixth least-reliable Republican vote in the Senate.

Political Endangerment Factor: 0. Gregg has decided to retire, rather than run for a fourth term this year.

PREDICTION: Yes.

Photo:Chip Somodevilla/Getty Images

Scott Brown:
Voted for Kagan As Solicitor General?: Wasn’t around.

Recent Public Remarks on Kagan: After meeting with Kagan, Brown called her “very supportive of the military as a whole," and said he doesn’t “feel that her judicial philosophy will be hurting the men and women who are serving."

Supreme Court Voting History: None. He’s new.

Maverickiness: Brown has shown himself willing to make some high-profile breaks with his party during his brief time in the Senate, particularly on cloture to advance the jobs bill, angering some tea-party types who supported his campaign.

Political Endangerment Factor: 7. Brown has to defend his seat in 2012 without the full force of the populist tidal wave that made his victory possible. And though popular, he’s still a Republican senator in Massachusetts. If he wants to win, he’ll need to continue to burnish his moderate credentials. Supporting a hometown nominee of sorts — Kagan was a professor and dean at Harvard Law School — couldn’t hurt, either.

PREDICTION: Yes.

Photo: Chip Somodevilla/Getty Images

Orrin Hatch:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Hatch made sure to point out that his prior vote for Kagan as solicitor general doesn’t “establish either her qualifications for the Supreme Court or my obligation to support her,” but he’ll be keeping an “open mind.”

Supreme Court Voting History: No on Sotomayor. Yes on Breyer. Yes on Ginsburg.

Maverickiness: Hatch is a solid Republican vote, but isn’t a partisan — he was also voted the third-easiest Republican senator to work with by his Democratic colleagues.

Political Endangerment Factor: 8. Utah’s other longtime Republican senator, Bob Bennett, recently became a victim of the anti-establishment rage sweeping the country. Voters have soured on Hatch as well, and his 2012 reelection race is right around the corner.

PREDICTION: Close, but no.

Photo: Mark Wilson/Getty Images

Jon Kyl:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Like Hatch, Kyl stressed that his prior vote for Kagan isn’t a precedent he has to follow. “As I made clear when I supported her confirmation as Solicitor General, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” his statement read.

Supreme Court Voting History: No on Sotomayor.

Maverickiness: Kyl votes with the GOP 89.5 percent of the time, and hasn’t demonstrated any notable independent streak.

Political Endangerment Factor: 5. Kyl’s poll numbers, like those of most incumbents, are fairly weak, and he’d be wise to shore up support with his base to avoid a primary battle in 2012 like the one John McCain is dealing with now.

PREDICTION: No.

Photo: Alex Wong/Getty Images

Tom Coburn:
Voted for Kagan As Solicitor General?: Yes.

Recent Public Remarks on Kagan: Coburn calls this vote “a totally different deal” from the one for solicitor general, and says that Kagan already starts with "a couple of strikes against her” — her lack of judicial experience and the Harvard military recruitment controversy. But, uh, he’ll "keep an open mind.”

Supreme Court Voting History: No on Sotomayor.

Maverickiness: Coburn is friendly with President Obama and has worked with him on legislation when both were in the Senate. But he votes with the GOP 88.9 percent of the time, and is considered one of the most partisan Republican senators by his Democratic colleagues.

Political Endangerment Factor: 1. Coburn is up for reelection this year but isn’t in any danger of losing, since he doesn’t even have an opponent, from any party.

PREDICTION: No.