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Wall Street Journal: Supreme Court Nominations Join Partisan Battleground

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By Naftali Bendavid

When senators vote on Elena Kagan's Supreme Court confirmation in early August, they are likely to split roughly along party lines--a far cry from the 97-0 vote in favor of Justice Anthony Kennedy in 1988 or Justice Ruth Bader Ginsburg's 96-3 tally in 1993.

Supreme Court confirmations are now part of the partisan battleground, with groups on both sides aggressively pressuring senators.

"Objectively speaking, things are changing, and they're unnerving to me," said Sen. Lindsey Graham (R., S.C.) during Ms. Kagan's confirmation hearing. He noted that 73 of the 126 Supreme Court nominations in history were so uncontroversial they didn't receive roll-call votes, meaning individual senators' votes weren't tallied.

To be sure, divisive confirmation fights are nothing new for the court. What has been different in recent years is that each nominee draws significant opposition in the Senate, even when he or she has long experience in the law and no obvious character flaws.

President George W. Bush's two nominees--John Roberts and Samuel Alito--drew 22 and 42 no votes, respectively, including then-Sen. Barack Obama on both occasions. Last year, Sonia Sotomayor was confirmed 68-31, and many senators expect Ms. Kagan's vote to hew even closer to the party divide.

Senators and scholars cite several reasons for the change. Conservatives often blame the 1987 confirmation battle of Robert Bork, when liberal groups said President Ronald Reagan was stacking the courts with conservative firebrands and mounted an all-out assault. Democrats, joined by six Republicans, rejected Mr. Bork in a 58-42 vote.

Four years later, Clarence Thomas's nomination featured spectacular allegations of sexual harassment by his former colleague Anita Hill, and he squeaked through with a 52-48 vote.

These fights whetted appetites on both sides to claim judicial scalps, and, over time, judicial battles developed into a full-scale part of culture wars.

Conservatives argued that liberal judges were engaging in activism, tailoring decisions to fit their ideology. That prompted a counter-reaction from the left.

Sen. Jeff Sessions (R., Ala.) argues that in scrutinizing judicial nominees more carefully, the Senate is being faithful to its constitutional duty.

"I think the Senate is perhaps getting closer to its constitutional role to at least inquire deeply into the philosophy of law, the philosophy of judging, that the nominee has," said Mr. Sessions, who voted against Ms. Kagan at the Senate Judiciary Committee.

These days, the opposition party nearly always finds a nominee "extremist," leading to party-line votes. One uncertainty is what would happen if the president's party didn't have a Senate majority. Republicans controlled the Senate during Mr. Bush's nominations, while Democrats hold the majority now.

In a letter to the Senate Judiciary Committee supporting Ms. Kagan, Miguel Estrada, who was blocked by Democrats from a federal judgeship seven years ago, said the parties "simply swap talking points" depending on who controls the White House.

When Mr. Estrada was nominated, he suggested, Democrats complained that he had no judicial experience and Republicans played down that fact. Now Republicans are lodging a similar complaint against Ms. Kagan, while Democrats are minimizing it.

"A lot of it is just Hatfields and McCoys: They did it to us, so we're going to do it to them," said Sen. Ted Kaufman (D., Del.).

President Bill Clinton sought to defuse the judicial battles by consulting with Republicans before making his nominations, which helped Justice Ginsburg and Justice Stephen Breyer attract broad GOP support.

With Ms. Kagan, Democrats say, Republicans are under pressure from the surge of conservative activism leading up to the midterm elections, and have adopted a strategy of opposing whatever Mr. Obama does.

Republicans deny that. They blame Democrats for the current atmosphere, saying that after the Democratic assaults on Messrs. Bork, Thomas, Roberts and Alito, they are unwilling to disarm unilaterally.

Mr. Kaufman also cites the increasingly powerful role of advocacy groups on the right and left, which spring into action the moment a Supreme Court vacancy occurs.

"We've built up a whole cottage industry that can do well engaging in partisan debate and that just keeps growing," Mr. Kaufman said. "We try to tamp it down sometimes, but it just comes back."

Curt Levey, president of the Committee for Justice, which pushes for conservative judges, conceded that advocacy groups help ratchet up the pressure.

"That's fair to say," Mr. Levey said. "But advocacy groups are more of a reflection of the change than a cause of it."

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