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Specter’s Kagan Problem

Sen. Arlen Specter (D-Pa.) faces a dilemma as he decides whether to vote for Solicitor General Elena Kagan’s confirmation as a Supreme Court justice: He is the only Democratic senator who has previously voted against her.

When Kagan came up for a confirmation vote on March 19, 2009, Specter — then still a Republican and his party’s ranking member on the Senate Judiciary Committee — voted against her. The Senate ended up confirming Kagan 61-31, with seven senators not voting. At the time, Specter mainly objected to Kagan because she did not give him specifics when he asked her what cases she would suggest the Supreme Court consider. Kagan is likely to be even less forthcoming on her opinions about specific issues during her next encounter with Judiciary; nominees for the Court have avoided giving detailed answers to most questions ever since Reagan nominee Robert Bork explained himself into a confirmation defeat in 1987.

Since Kagan’s name resurfaced as one of the finalists to replace retiring Justice John Paul Stevens, Specter has said he would be willing to reconsider her.

“Supreme Court nominations are a little different from solicitor general,” he said during an April 21 appearance on MSNBC. “I have an open mind.”

Specter could face political problems whether or not he chooses to vote for Kagan, but his problems will likely be more serious in the rather unlikely event that he chooses to defy Obama and his new party by rejecting her.

“I expect Specter will support her, because he needs [the Obama administration’s] energetic support as well as the support of his new party in Pennsylvania if he is to have any chance of winning re-election,” said Dr. Rogers Smith, a political science professor at the University of Pennsylvania.

Obama and other senior Democrats quickly backed Specter over Sestak last year, and the Democratic Senatorial Campaign Committee has invested heavily in Specter’s candidacy.

Even before Specter can think about a possible repeat face-off against his 2004 primary opponent, former Club for Growth President Pat Toomey (R-Pa.), he must win the highly competitive May 18 Democratic primary. Recent polls show the race between Specter and his main opponent, Rep. Joe Sestak (D-Pa.), has tightened considerably in recent weeks. Muhlenberg College now has Sestak leading Specter by five points in its latest results, while Rasmussen Reports has Sestak leading by the same margin. However, since Kagan’s nomination hearings aren’t even expected to start until well after Specter’s primary is concluded, Kagan’s nomination may not be an issue in that contest.

If Specter decides to change his mind and support Kagan this time, it may play into the hands of the Toomey campaign, which has criticized Specter’s party switch and subsequent policy decisions as examples of political opportunism. However, Smith said voters would not suddenly reject Specter if he changes his mind on Kagan.

“The fact that he opposed Kagan before will be a bit awkward for him, but very few voters are likely to decide their Senate vote on that basis,” Smith said. “Most of the voters he is trying to win will understand and approve of his shift.”

*Update: *Real Clear Politics has a look ahead at the confirmation process — coincidentally with the same headline as this post — that touches on Specter’s dilemma and highlights the political battles of the coming week.

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