WASHINGTON — Barring extraordinary circumstances, Solicitor General Elena Kagan should win confirmation to the Supreme Court on the strength of Democrats' numerical advantage in the Senate.
To stop her from becoming the nation's 112th justice, Democrats would have to abandon President Barack Obama and his second high court pick or almost all of the GOP senators would have to agree to filibuster the nomination — more than a year after seven of them voted for Kagan to become the solicitor general.
It is unlikely that Republicans will try to block her, said Manuel Miranda, chairman of the conservative Third Branch Conference.
"She shouldn't be filibustered, she won't be filibustered," said Miranda, a former Senate staffer who worked on judicial nominations. "Probably no nominee would have been filibustered. The notion of a filibuster is a distraction. The real issue becomes how heavily she'll be scrutinized and how great an investment in time will Republicans invest. The next level of investment is not a filibuster, but how much effort Republicans will devote to this nomination."
Obama is expected on Monday to announce Kagan as his second pick to the nation's highest court. If confirmed, she would join Justices Ruth Bader Ginsburg and Sonia Sotomayor in bringing the number of women on the Supreme Court to three, the highest in the court's history.
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The Senate will determine whether the 50-year-old Kagan will become the replacement for retiring Justice John Paul Stevens. Democrats control the chamber with 59 votes, one short of what they would need to forestall any possibility of a partisan filibuster.
Seven Republicans have already voted once for Kagan, when her nomination came before the Senate last year to become the solicitor general. That means it's unlikely they will be able to unify to block her from the Supreme Court.
Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said she doesn't think Republicans will attempt a filibuster. "I think if her nomination goes down, it will be because the moderate Democrats don't want to vote for a controversial nominee, so I don't think it'll come to a filibuster," she said.
Not all Democrat-affiliated groups are happy with Obama's choice — some are concerned that replacing Stevens — the leader of the court's liberal bloc — with a moderate like Kagan would have the net effect of making the court more conservative.
"If the president's nomination of Elena Kagan is successful, the result will move the Supreme Court to the right. Progressives should fight the Kagan nomination," said Norman Solomon, progressive activist and author of "War Made Easy: How Presidents and Pundits Keep Spinning Us to Death."
The solicitor general — known informally as the "tenth justice" — represents the United States, including defending acts of Congress, at the Supreme Court and deciding when to appeal lower court decisions.
Kagan has never been a judge. Beyond her work as solicitor general and her time as dean of Harvard Law School, she does not have much material her opponents can use to attempt to forestall her confirmation.
Conservatives should investigate her background very closely because of that, said Ed Whelan, president of the Ethics and Public Policy Center.
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"Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience," Whelan said. "She's been extremely guarded about her views, with the exception of gay rights, where she has been vehement in opposing federal laws she doesn't like and has worked as solicitor general to undermine those laws. The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice."
