Byron York

There's an intense debate going on behind the scenes among Republicans involved in the Elena Kagan Supreme Court nomination. It's about whether the GOP should to try to stop Kagan, because that's what Democrats would do in the same situation, or whether Republicans should concede that Kagan is qualified and vote to confirm her because the president has the right to expect the Senate to approve qualified nominees.

The debate began almost immediately after Kagan stood next to Barack Obama at the White House announcement on May 10. In an interview with MSNBC, Kenneth Starr, the former judge, independent counsel and solicitor general, urged the Senate to confirm Kagan, whom he called "so smart and so able."

Rush Limbaugh

"President Obama has chosen someone who is very qualified," Starr concluded.

A few days later, former Bush appeals-court nominee Miguel Estrada sent a letter to the Senate Judiciary Committee urging that Kagan -- a friend from their days together at Harvard Law School -- be confirmed. (At the same time, Estrada pointed out that Kagan is without doubt a liberal, no matter the spin about her supposed centrism.) "Elena Kagan is an impeccably qualified nominee," Estrada wrote. "(She) possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable."

Estrada's letter resonated among Republicans because, to many in the GOP, he is the living symbol of a conservative judicial nominee mistreated by Senate Democrats. Smart, credentialed, with a fine record and impressive personal story, he was nominated by George W. Bush for a seat on the U.S. Court of Appeals in May 2001. Democrats blocked his nomination and ultimately resorted to a filibuster against him in 2003. In September of that year, Estrada withdrew his nomination. (Despite their friendship, Kagan, then a law professor at Harvard, didn't write a letter on Estrada's behalf.)

Today, the conservative expressions of support for Kagan have disappointed a number of Republicans who want a shootout over the nomination. They fully expect Democrats to cite that support ("Even Ken Starr says ...") over and over again during Kagan's confirmation hearings.


Byron York

Byron York, chief political correspondent for The Washington Examiner