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President Barack Obama‘s nomination of Elena Kagan to the Supreme Court seat is elevating touchy social issues in an election year, just as the tea party is showing how volatile and unpredictable the political landscape has become.
Any Supreme Court confirmation battle stirs a pot of issues important to conservative and liberal activists. Kagan can expect to be grilled about abortion, privacy, property rights, gun control and treatment of terrorist suspects.
What’s different from last year’s rather smooth confirmation process for Sonia Sotomayor is that a national election is much closer, and the tea party has revealed a ferocity on the political right that has toppled high-level Republicans in two states and now seeks more.
The Kagan choice especially causes problems for two veteran senators, Democrat Arlen Specter and Republican Orrin Hatch. Both are now trying to explain earlier votes for or against her confirmation as solicitor general.
To be sure, jobs and the economy will dominate the fall elections for Congress and dozens of governors and state legislatures. But social issues, which gain prominence during judicial debates, could spell the difference in at least a few tight races, perhaps more.
These issues are particularly important to conservative and liberal activists, the motivated voters who can have an especially large impact because they turn out even in non-presidential election years.
The candidates most immediately affected will be the 25 senators seeking re-election on Nov. 2, which probably will fall a couple of months after the Senate votes to confirm or reject Kagan. Barring a bombshell revelation, her confirmation seems likely. Democrats control 59 of the 100 Senate votes.
The hottest seat may belong to Specter, the Republican-turned-Democrat in Pennsylvania who is now battling hard for the nomination for a sixth six-year term.
In March 2009, Specter was one of 31 GOP senators who voted against Kagan’s confirmation as solicitor general. Now he’s courting liberal voters likely to turn out for next week’s Pennsylvania primary. His opponent, Rep. Joe Sestak, portrays himself as the bona fide Democrat in the race.
Sestak wasted no time Monday reminding Pennsylvania Democrats that Specter voted against Kagan earlier.
Sestak predicted that Specter will “backtrack” from that vote to woo liberal primary voters.
Specter certainly left that door open. He said he voted against Kagan as solicitor general “because she wouldn’t answer basic questions about her standards for handling that job.” The solicitor general’s post is “distinctly different” from a Supreme Court seat, Specter said, adding that he has “an open mind about her nomination.”
Utah’s Hatch has almost the opposite problem. Hatch doesn’t face re-election until 2012, but the conservative firestorm sweeping his state is throwing light and heat on his March 2009 vote to confirm Kagan as solicitor general.
On Saturday, a Utah Republican convention with a heavy tea party presence killed the re-election hopes of Hatch’s fellow GOP senator, Bob Bennett, seen by many in Washington as a down-the-line conservative. Some hard-right activists said they now will turn on Hatch. Like Bennett, he wins high marks from conservative groups but works with Democrats on some issues.
Hatch said Monday that his vote for Kagan as solicitor general does not establish “her qualifications for the Supreme Court or my obligation to support her.”
One touchy social issue certain to arise in Kagan’s confirmation hearings involves her effort, as Harvard Law School dean, to bar military recruiters from campus. She objected to the Pentagon’s “don’t ask, don’t tell” policy, which has kept homosexuals from openly serving in the military.
“I hope this act is not a harbinger of a tendency to render judgments based on political reasoning,” said Sen. Richard Shelby, R-Ala.
For Obama, the Kagan pick adds to his legacy — begun when he picked Sotomayor for the Supreme Court — of promoting diversity and seeking justices sensitive to the law’s powers to help or hamper people’s everyday lives.
In introducing Kagan at the White House Monday, Obama said she understands the law “not as an intellectual exercise, or words on a page, but as it affects the lives of ordinary people.”
In his 2012 re-election bid, Obama will have to defend many decisions, including his choices of Sotomayor and Kagan.
For candidates seeking the 435 House seats and three dozen Senate seats this fall, the Kagan confirmation effort will touch them sooner but less directly.
Its focus on social and legal issues may have trouble breaking through the electorate’s economic concerns. But a fiery movement on the right is ready to add fuel if it does.
Charles Babington covers the White House for The Associated Press
Copyright © 2010 The Associated Press