Supreme Court expert predicts '63, 64' votes for Kagan

Supreme Court nominee Elena Kagan is likely to receive a safe confirmation vote of 63 or 64 Senate votes to cement her appointment, a legal expert told The Hill on Thursday.

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Thomas Goldstein, co-founder of the SCOTUSblog and a well-known Supreme Court litigant at Akin Gump, said Kagan’s relatively moderate background and trouble-free nomination so far bodes well for her ultimate confirmation vote. However, with November elections looming and because Kagan isn’t a minority nominee as was 2009 nominee Sonia Sotomayor, Goldstein predicted Kagan will likely receive fewer votes.

“We’re looking at rather than 68 votes, which is what Sonia Sotomayor got, probably 63, 64,” said Goldstein, who also teaches Supreme Court classes at Harvard and Stanford law schools.

Goldstein said Kagan faces little real risk, with 59 Democratic votes “locked up” and top Republicans dismissive of a filibuster. Yet, ironically, given Kagan’s moderation compared to the more liberal politics of the retiring justice she is replacing, John Paul Stevens, Goldstein said the ultimate effect would be to tilt the court rightward. Stevens was also a well-known authority figure on the court.

“It’s like losing a committee chair, or something like that. You step back in that way,” Goldstein said. “So just by way of who’s leaving rather than who’s coming in, the court gets a little bit more conservative.”



Two Republicans to watch as hearings start on Monday: Sens. Lindsey Graham (S.C.) and Orrin Hatch (Utah). Goldstein said both Judiciary Committee members have tried in past hearings to act in a bipartisan manner and reach out to Democrats, and both are likely to do so again.

“If she’s going to get five to 10 votes from the Republicans, it’s going to have to be led by those two,” Goldstein said.

Goldstein embraced the conventional wisdom that modern-era confirmation hearings have become largely theater, with a paucity of detailed information offered by the nominees — a view that Kagan herself famously lamented in a memo she once penned.

While most recent nominees have “crouched down in a defensive posture,” Goldstein said Kagan is likely to be more forthcoming, but only to a point.

“It’s really relatively rare nowadays, unfortunately, that we get a ton out of the hearings, where you get detailed questions and detailed answers and you come out saying, ‘Gosh, now I understand what the nominee believes,’" Goldstein said.

“Instead, regrettably, it tends to be about scoring political points one way or the other. But we always hope that there actually is a lot of hunger in the country to understand the law and understand the Supreme Court.”

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