That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees...At the end of a very hot June, with political attention still turned elsewhere, and with Kagan effectively pulling off a blank slate strategy her whole life, her confirmation appears certain. More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee. If there is a way to defeat it, no one appears to have figured it out yet.Matt Yglesias agrees.
I'm not so sure. Yes, Elena Kagan is by all accounts going to be confirmed. But I'm really not sure things would be all that different if she had a somewhat longer paper trail, complete with controversy. The Sonia Sotomayor case isn't identical, but it's similar -- and in that case, 31 of 40 Republicans voted against her. I expect about the same number to oppose Kagan. If there were 55 Republicans instead of 40 or 41, then we'd be talking about somewhere around 45 "no" votes, and it's fairly likely the nomination would be defeated by filibuster.
On the other hand...what kind of evidence would push moderate Democrats and the two Senators from Maine to vote against a nominee? In fact, moderate Democrats have a history of supporting nominees from both parties: they voted for Roberts, Alito, and Sotomayor, for Ginsburg and Breyer. Even, for the most part, for Thomas. The same with Snowe and Collins (who were not around for Thomas, so we don't know about that). The only (fairly) recent nominees to lose support from the center was Robert Bork, and he needed a highly controversial paper trail and a confrontational hearing style to manage that. Now, that's before the full 60 vote Senate, and I don't think it would be possible for Thomas or anyone else to get confirmed 52-48 today. But the question here is about the voting behavior of the moderates, and the evidence is that they like voting "yes" on confirming Supreme Court Justices.
So my guess is that Barack Obama had very little trouble finding someone who could get confirmed, given the size of the Democratic majority. On the other hand, Yglesias says:
So arguably if Obama really likes Kagan, he should have kept her in his back pocket as a possible “blank slate” nominee to be deployed in the future at a time when the Republicans have a stronger objective position in the Senate.Perhaps -- but I'm not entirely convinced that there are a set of Republican Senators who are going to base their decision on, well, the nominee. At any rate, I don't think the "blank slate" strategy is working with most Republican Senators; we'll see, but as I said I expect Kagan to draw about the same level of opposition that Sotomayor received.
The larger point here is that it's important not to assume that winning -- whether in elections, or confirmation battles, or in getting a bill passed -- implies that the strategy employed was correct, much less necessary.