The whipped cream on the cake



We can probably assume that Arlen Specter spent the weekend hoping that the fates would spare him the embarrassment of having to twist like a pretzel on the topic of Elena Kagan.

No such luck. President Obama went right ahead and tapped Kagan to fill the latest vacancy on the U.S. Supreme Court - thereby creating a new political predicament for Pennsylvania's chameleonic senior senator, who already appears to be on the precipice of losing next Tuesday's Democratic primary to liberal congressman Joe Sestak.

For Sestak, whose upstart candidacy hinges in part on the proposition that former Republican stalwart Specter is a phony Democrat and flexible opportunist, the Kagan nomination is a delicious late-in-the-game development, the political equivalent of a seven-layer cake with cherry on top. And Specter has now offered himself up as whipped cream.

In February 2009 - when Specter was still a Republican, with plans to move rightward in order to survive a '10 Republican primary - he rendered a thumbs-down verdict on Kagan. Along with 30 Republican colleagues, he opposed Obama's decision to name Kagan as the first female U.S. Solicitor General (the federal government's lead lawyer in court cases). In a letter to Kagan at the time, Specter complained that she had been "unresponsive" in front of the Senate Judiciary Committee, that her answers were "inadequate for confirmation purposes."

Kagan, who at the time was serving as the first female dean of Harvard Law School, ultimately cleared the Senate with ease; indeed, seven Republican senators broke ranks and voted Yes. Which means that Specter positioned himself to the right of conservatives such as Tom Coburn and Jon Kyl.

So Specter's current predicament is obvious. If he was to remain faithful to his '09 Republican convictions and say that he still views Kagan as "inadequate for confirmation purposes," he'd merely confirm the widespread suspicion (stoked by Sestak) that he's a faux Democrat - and he'd surely be toast in next Tuesday's primary, which is open only to Pennsylvania Democrats.

But if he was to summarily jettison those '09 convictions and laud Kagan as a fabulous high court nominee (in order to demonstrate party loyalty to Obama, who, after all, is promoting his '10 candidacy), he'd look like a flip-flopping opportunist - thereby confirming Sestak's portraiture. In fact, Sestak predicted yesterday that the nimble-footed incumbent would tiptoe toward Kagan; as the challenger wryly remarked, "I expect Senator Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election."

And sure enough, Specter has now declared that he has "an open mind" about Kagan's high court nomination. Quelle surprise.

He explains that he "voted against her for solicitor general because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court justice."

Clearly, he's trying to reassure Democratic primary voters that after being against her before, he's now prepared to be for her tomorrow. But oh, the rhetorical pirouettes that he is now compelled to perform:

He seems to be saying that although he found her reticence on crucial issues to be unacceptable when she was up for the solicitor general job, he is open to finding her acceptable even if she remains reticent during the upcoming hearings on her high court nomination, because, after all, "it is a distinctly different position."

So...I'm trying to follow his line of logic...He seems to be saying that the person who holds the relatively temporary job of solicitor general should first be required to detail his or her constitutional and legal principles - whereas the person who has been nominated for a lifetime position of unparalleled autonomy should not necessarily face any such requirement.

At least that's what I think he's saying - or seemingly implying - no doubt due to the political exigencies of the moment. But let us not parse any longer. The bottom line is, Kagan could declare today that she intends to sit for days at the Judiciary Committee table with her mouth encased in duct tape, and Arlen Specter, 2010 version, would probably still declare that his mind is open.

And Joe Sestak can probably dine on this dessert until the primary votes roll in.