Progressive lawyers and conservative lawyers alike tend to find the trend toward presidents trying to find Supreme Court nominees who haven’t weighed in on major constitutional issues annoying. And with Elena Kagan representing a continuation and extension of that trend, there’s been a lot of disgruntlement. But as Chris Bowers points out, the strategy seems to be working well.
Kagan’s poll numbers aren’t good when compared to other recent nominees. But despite that, Republicans are basically waving the white flag and admitting that they won’t make a serious effort to beat her.
Now of course from a progressive point of view, this is arguably part of the problem. Right now, the GOP would find it difficult to block a nominee no matter how hard they tried simply because there aren’t very many Republican Senators. What’s more, it’s overwhelmingly likely that in the near future there will be quite a few additional Republicans. So arguably if Obama really likes Kagan, he should have kept her in his back pocket as a possible “blank slate” nominee to be deployed in the future at a time when the Republicans have a stronger objective position in the Senate.