By choosing Elena Kagan as his Supreme Court pick, President Obama will likely avert a bitter confirmation battle over the summer. While there’s always a chance that something unknown can surface to derail the pick, all the key signals point to a smooth confirmation.
The most important sign of how contentious any pick is likely to be is to look at the immediate reaction of the opposition. The most infamous example of this would be Ted Kennedy’s tirade against Robert Bork on the Senate floor within an hour of the nomination, in which Kennedy declared that, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the Government…” (Video here). And after President Bush nominated Harriet Miers, conservative activists immediately went to work trying to torpedo the appointment. But the case of Kagan, Republicans have been pretty tame initially, taking a respectful wait and see approach.
While critics will take issue with Kagan’s lack of experience as a judge, the advantage from a confirmation standpoint is that she’s much more of a blank slate and won’t have as much of a paper trail to go through, depriving opponents of ammunition.
Ultimately, Kagan is likely to face relatively smooth sailing because Republicans know Obama will get a nominee one way or another. It’s unlikely that anybody who Obama nominates would be any better than Kagan, but it’s quite possible that were her nomination rejected, that he could nominate somebody much worse.