In defense of an admittedly terrible argument

As you probably already heard from this post, Lady Blaga and I have a little wager going on concerning how many votes Elena Kagan’s nomination manages to wrangle in the Senate. Based on some pretty terrible and Friday-night-related maths, I predicted she’d be confirmed, and that it would be by the slimmest of margins: 60 votes. No more, no less.

Of course, I didn’t quite expect Lindsey Graham to pull a…Lindsey Graham and not be a hypocrite. So, I’m changing my prediction to 63-64 (Lady Blaga predicts 65), but I do hold to my word and will pay the good Lady if Kagan’s confirmation pulls more or fewer than 60 votes. However, I think my original logic is sound, and I’ll explain why: a. it’s going to be slim (definitely slimmer than Sotomayor’s), and b. how Graham’s 1 vote equals 3 or 4 (but not more than that).

First, while the make-up of the Senate may be similar, the political atmosphere has definitely changed. When Sotomayor was nominated, President Obama was riding relatively high approval ratings. The summer of health care town halls and tea parties had not yet wounded him. The Democrats had succeeded in passing fairly popular legislation: the Lily Ledbetter Act, the stimulus package (it wasn’t always a political albatross), and expanding the S-CHIP program. Not to mention grabbing Arlen Specter from the Republicans. Of course, Republicans had started their strategy of obstructing the Democrats by an means necessary, but it hadn’t gotten to the point yet of actually trying to stop Sotomayor’s nomination. Now, though, the President is suffering relatively low approval ratings, the Democrats are in political trouble, and it seems that the Republican strategy of standing together against everything is working. One could expect that they’d do the same and demagogue Kagan.

(I guess here is where I say it should be noted that the only Republican on the Judiciary Committee that voted to approve Sotomayor’s nomination was—you guessed it—Lindsey Graham.)

In 2009, the President and Congress were new. The Democrats had just secured a massive advantage in both houses of Congress. This year, however, is an election year, and this will be an issue in the fall. For this reason, I expect(ed) that the Republicans would, for the most part, hold to their strategy of saying no, since it has been working, and using “yea” votes against Democratic rivals. Senators in tough races or in tough states could have, at the discretion of the leadership, been given a pass on the vote, at least assuming there were enough votes to break a filibuster. This is partially why I still suspect that the vote would be closer to 60.

Additionally, Kagan just isn’t as good a nominee as Sotomayor. She has a relatively standard background (well, for a Supreme Court justice) that’s as academically and professionally impressive as emotionally uninteresting. Sotomayor had a story that almost everybody was uncomfortable arguing against, which seemed to make her achievements even more impressive. And, while I’d be the first to welcome a justice that didn’t serve on a federal court, Kagan’s judicial inexperience has been a boon to hypocritical* Republicans looking for an excuse to filibuster or vote “nay.”

* Of course, don’t tell them that Chief Justice Rehnquist was never a judge.

So, when I made the bet, I expected that only one Republican would switch, because while the Republicans were smart enough to say no (and force that vote in every race they were in), they weren’t comfortably with actually shutting down the nomination. Think of it this way: Many Democrats would have loved to impeach President Bush when they came to power in 2006, but memories of Clinton’s impeachment made that toxic; likewise, memories of Bork make shutting down a nomination toxic.

However, Graham’s defection from the party line creates cover for some of the more moderate and sensible Republicans to also vote yea. I’m looking at you, Susan Collins and Olympia Snowe. (And, in case you were wondering, I expect Scott Brown to vote nay, as I suspect he’s been looking for an excuse to buck the administration and remind people that he’s a Republican.) On the other hand, if more Republicans join, I half-expect the more conservative Democrats to start shying away, especially those in tight races…Blanche Lincoln and Ben Nelson anyone?

Update: Not 30 minutes after posting this, I find that Dick Lugar announces he is supporting Kagan. I’m ruined.

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