Actually, the GOP talking points are focusing on Kagan's lack of judicial experience — which, considering that Senate Republicans refused to confirm her as a judge when she was nominated by Bill Clinton, is their own doing. And that's no coincidence, writes Ari Melber in his Nation blog:
The courts and the Senate remain glaringly unequal arenas for women, regardless of their qualifications. First, male judges still outnumber women across the judiciary. But then, the women who are nominated to the federal bench still face a tougher road.
A statistical study of confirmations from 1985 to 2000, when Kagan's nomination lapsed after the Republicans' procedural delays, found that the Senate took 50% longer to confirm female nominees than their male counterparts. During one confirmation debate in 1998, the Clinton administration suggested that Senate Republicans were even profiling judicial nominees. An administration briefing stressed of the nominees that Republicans had delayed the longest, a whopping 86 percent were women or minorities.
One of the study's authors, Professor Paul M. Collins Jr., told The New York Times, "Female and minority nominees are being pressed more on their judicial philosophies than white male nominees. There might be a concern that they would bring their unique backgrounds to the bench."
Congress: Where being female and non-white is perpetually a "unique background" you have to justify. Interestingly, the study also shows that despite the fact that Roe v. Wade was in 1973, abortion rights did not become a major part of the confirmation hearing agenda until 1981 with Sandra Day O'Connor. Reagan-era culture wars, anyone?
That said, abortion-related questions have been the subject of only 5 percent of the discussion, according to a second study cited by The Times. "Racial and gender discrimination, speech and religious freedom and even non-abortion-related privacy have all played larger roles." All of these are expected to come up, as are military recruiting and broader civil rights issues. Although the NAACP has endorsed Kagan, several other civil rights organizations are withholding judgment til they learn more.
Despite the fact that legal commentator Jeffrey Toobin keeps calling it the Nerd Super Bowl, the road to Kagan's confirmation may yet end up being smooth — and boring. As Collins' co-author told the Times, "There are a thousand ways to say nothing."