If you had forgotten all about Elena Kagan's nomination to the Supreme Court, and that her confirmation hearings are scheduled to begin today, then you are not alone. The Kagan nomination fight has really flown under the radar. According to Pew, the week Kagan was nominated, all of 5% of the country said news of her nomination was the story they followed most closely (tied for third with news of Iraq). Since that time, her nomination never cracked the top five news stories, or was the top story for more than 1% of Americans, again.
All of this is good for the White House, since Kagan's confirmation numbers are less than stellar. As I analyzed four weeks ago:
So far, Gallup, Fox, Pew, and Rasmussen have released polling on whether the public thinks Elana Kagan should be confirmed or not. Compared to polling from these same four outlets at the same point in the Alito and Sotomayor confirmation process, Kagan lags behind (see Miers, Alito, Sotomayor, and Kagan for the Rasmussen polls, and here for all other polls).
Sotomayor: +18.2% (mid-June 2009)
48.0%--29.8%
Alito: +12.3% (mid-December 2005)
37.3%--25.0%
Kagan: +9.0%
37.8%--28.8%
Miers: +1.5 (late-October 2005)
35.5%--34.0%
Kagan has a net positive "confirm" of 9%. While that puts her well clear of the failed nomination of Harriet Miers, that is half of what Sonia Sotomayor had in mid-June of 2009 according to these four polling firms, and even less than Samuel Alito's numbers in mid-December of 2005.
Since that time, Kagan has continued to receive anemic numbers from CNN (44%--39%), Pew (33%--25%) and NBC (29%--23%). Even without a clear line of attack on Kagan, these are tricky numbers for a Supreme Court nominee. There was one wildly favorable poll for Kagan, from ABC / WaPo in early June. In that poll, Kagan's confirmation numbers were 58%-24% in favor. The difference between that survey and the others which have been conducted is that she was referred to as "U.S. Solicitor General Elena Kagan" rather than just "Solicitor Elena Kagan" or "Elena Kagan."
Despite these (generally) low poll numbers, Kagan's confirmation appears to be a certainty. The ranking Republican on the Judiciary committee, Orrin Hatch, waved the white flag this morning:
Sen. Orrin Hatch (R-Utah), the second-ranking Republican on the committee who has at times served as its chairman, downplayed the likelihood of Republicans looking to block Kagan's nomination, as the Judiciary panel begins hearings on her this morning.
"I don't think anyone's going to do that," Hatch said during an appearance on MSNBC when asked if a filibuster was in order. "After all, there's 59 Democrats, and I suspect there'll be a few Republicans who will vote for her regardless."
That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees. A blank slate is a boring news story, and so there was little coverage of her over the past six weeks. A blank slate also doesn't have scandals or skeletons, which has prevented Republicans from adopting a coherent or effective line of attack against her. It is also a replication of what the Bush White House did with John Roberts, so the blank slate strategy now has the bipartisan seal of approval.
At the end of a very hot June, with political attention still turned elsewhere, and with Kagan effectively pulling off a blank slate strategy her whole life, her confirmation appears certain. More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee. If there is a way to defeat it, no one appears to have figured it out yet.
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