Elections Lend Kagan Debate a More Partisan Tinge

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WASHINGTON — Republicans running for re-election are coming out early against Supreme Court nominee Elena Kagan. Democrats are using her picture to raise money.

This summer's debate over Kagan's nomination has taken on a particularly partisan tinge because it's taking place just months before fall elections, even though her confirmation is not in serious doubt. [Read 10 factors that could shape Kagan's decisions on the Supreme Court.]

Last year, many Republicans stayed publicly uncommitted for weeks about how they would vote on Justice Sonia Sotomayor, President Barack Obama's first pick for the high court, and a handful speedily said they would support her.

This time around, however, with the president's popularity sagging and GOP senators eager to draw strong contrasts with him and other Democrats, no Republican has announced plans to back Kagan, and several who are facing re-election have been quick to announce their plans to vote "no."

They include Arizona Sen. John McCain, Alaska's Sen. Lisa Murkowski, Sen. Johnny Isakson of Georgia and Sen. Jim DeMint of South Carolina. [See who donates the most to your member of Congress.]

All were opponents of Sotomayor's last year when she won just nine Republican votes. But most waited until later in the game to announce how they would vote, including Murkowski, who held out until the day before the roll call.

And Sen. Orrin Hatch, R-Utah, has also been much quicker this year to announce his opposition to Kagan than he was to state his opposition to Sotomayor. Hatch doesn't face voters until 2012, but he's keenly aware that conservatives in his state are in no mood to tolerate lawmakers who side with Democrats, having just turned out fellow Utah Sen. Robert Bennett in a bitter intraparty fight.

"He has very clearly seen where the attitudes of the voters of Utah are right now," said Gary Marx of the conservative Judicial Crisis Network, a group that's pressing Republicans and Democrats from right-leaning states to oppose Kagan.

"What you're seeing is where there are senators and candidates who are closest to the people — those senators and candidates who are in election races or up for election — they're the ones that are coming out most strongly against Kagan," Marx said. [See our roundup of political cartoons on Kagan's nomination.]

Senate Judiciary Committee Republicans on Tuesday requested and won a one-week delay in sending Kagan to the full Senate for a vote — a routine move by the party out of power to register opposition to a nominee. But barring a surprise development, Kagan, 50, who has served as the Obama administration's solicitor general, is on track to win confirmation by early August to succeed retiring Justice John Paul Stevens and become the fourth woman to serve on the Supreme Court.

In a year when job losses and economic doldrums are dominating voters' attention, her nomination is hardly a central issue in most campaigns. But conservative activists have been urging GOP candidates to view a vote on Obama's nominee as yet another chance to register opposition to the president's agenda — and to a judge they argue would be a rubber stamp for it.

Judiciary Republicans made the connection plain on Tuesday, writing Kagan to ask whether she had weighed in on the legal or constitutional issues surrounding Obama's health care law — the subject of pending lawsuits — and demanding answers about whether she'd recuse herself from such questions as a justice.

Democrats, too, Democrats are using Kagan's nomination as a chance to raise money and stoke enthusiasm among the president's supporters. The Democratic Party circulated an e-mail earlier this month that linked to a fundraising appeal bearing a photograph of Kagan and a bumper sticker-style "Kagan for Justice" banner.

Republicans seeking to succeed retiring senators or topple sitting Democrats have also been quick to say they would oppose Kagan if they had a vote. They include Arkansas Rep. John Boozman, running to oust Democratic Sen. Blanche Lincoln; Missouri Rep. Roy Blunt, who's seeking the seat of retiring Sen. Kit Bond; and tea party-backed Marco Rubio in Florida, who is running to succeed retired Sen. Mel Martinez. Former New Hampshire Attorney General Kelly Ayotte and conservative lawyer Ovide LaMontagne, who are vying to succeed retiring Sen. Judd Gregg, also have both said they're against Kagan.