Timing of Kagan vote to force GOP to decide quickly or work late

By J. Taylor Rushing - 07/30/10 06:00 AM ET

The Supreme Court nomination of Elena Kagan won’t hit the Senate floor until the second half of next week as part of a strategy to persuade Republicans to agree to a compact debate schedule or risk pushing back the August recess.

Democratic leaders plan to open debate on the Kagan nomination late Tuesday or Wednesday, which would allow just three days of debate — or possibly less, if senators hope to leave on Thursday night, as they typically do.

Frustrated by Republicans’ success at blocking several bills, including campaign finance reform and a small-business bill this week alone, Democrats suggest they have no choice. A successful vote on Kagan would also allow Democrats to leave for the monthlong August recess with the opportunity to claim success — something they have otherwise often been denied by the GOP during the July work period.

“Adjournment is a powerful force,” Majority Whip Dick Durbin (D-Ill.) told The Hill. “We hope to have a necessary, complete, but not protracted debate.”

A senior Democratic aide also said leaders felt they had no choice but to return Republicans’ hardball tactics with those of their own.

“It is unfortunate that Republicans are continuing their efforts to delay and obstruct every issue that comes before the United States Senate,” the aide said. “This is especially unfortunate when so many Americans are depending on our action to strengthen our economy and create jobs.”

But Republicans responded to news of the strategy on Thursday with surprise and warnings that they might push for a longer debate schedule.

“It’s not a good idea,” said Senate GOP Whip Jon Kyl (Ariz.). “[Chief Justice John] Roberts and [Justice Samuel] Alito took four and five days on the floor, and Sotomayor was three. It’s pretty hard to do a nominee in less than three full days if everyone is going to have a right to speak. I don’t know how you shut senators up and say they don’t have a right to speak. That would not be a good thing.”

Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, recalled that Kagan’s confirmation hearings were largely composed of different versions of Kagan’s actions regarding allowing military recruiters on campus when she was dean of Harvard Law School. That may require more time than usual on the Senate floor to sort out, he said.

“I would hope that [Majority Leader Harry] Reid [D-Nev.] wouldn’t do that,” Sessions said of a Wednesday-Thursday debate schedule. “It just compresses things and creates irritability, and it may be an attempt to compact the nomination so the American people aren’t as able to be attuned to what’s occurring. The nominee isn’t particularly popular with the American people. So maybe they want to force it through. It’s not good.”

The ultimate decision on the debate schedule for Kagan would be based on negotiations between Reid and GOP Leader Mitch McConnell (Ky.) over the next few days. It would also depend on how many members on each side request time to speak on the floor.

Last year’s debate on nominee Sonia Sotomayor followed a similar schedule to that being considered for Kagan. Opening statements for the Sotomayor debate were sent out late Tuesday afternoon of the last week before the August recess, with the final vote at mid-afternoon on Thursday.

Sessions said that schedule for Sotomayor was fair and reasonable. If Kagan’s nomination can come forward late Monday or early Tuesday, he suggested, Republicans would feel fairly treated.

“Last year gave everybody a fair chance, and you didn’t feel like if you were taking the floor that you were delaying somebody’s ability to go home,” he said. “So I hope they won’t try to compact it too much. The debate should take the time it needs. If it’s five days, fine. If it’s three days, fine.”

Sotomayor received 68 votes last year, including those of nine Republicans. Kagan is expected to receive fewer GOP votes than did Sotomayor, but will be confirmed easily.

Democrats were largely robbed of the chance to take a victory lap into the August recess last year because the party was put on the defensive during a contentious series of town halls on healthcare reform.

Republicans have sent varying signals as to their interest in filibustering Kagan’s nomination. Initially, leaders indicated they weren’t inclined to pursue one. On Thursday, however, Sessions said it could remain on the table.

“I don’t think our members have any desire to filibuster, and I don’t sense that’s about to occur,” he said. “But if the process works out in a way that our leadership doesn’t feel is legitimate, it may be that some parliamentary tactics would be utilized.”