CBS Legal Correspondent: Senate Democrats Can Blame Themselves for Kagan Confirmation Difficulties

There have been a lot of complaints from the left over the opposition Supreme Court Justice nominee Elena Kagan has faced from Senate Republicans in her battle to win confirmation. But Kagan proponents should have seen this day coming when Democrats in the Senate did the same things to try to slow the confirmations of Justices John Roberts and Samuel Alito.

On CBS's July 4 "Face the Nation," CBS legal correspondent Jan Crawford explained why. Previously throughout these types of confirmation processes, the Senate would approve a President's nominee, assuming the candidate was qualified. But President Barack Obama, Vice President Joe Biden and Senate Judiciary Chairman Sen. Patrick Leahy, D-Vt. all set a new precedence when George W. Bush was president.

"Historically, [Kagan] would have been confirmed like Justice Ginsburg was, 96-3, or Justice Breyer, 87-9, but things changed. I mean, things changed 10 years ago, when Democrats started filibustering President Bush's qualified nominees," Crawford said. "I had a talk about all this -- I guess, what, five or six years ago with Mitch McConnell. You know, he said memories are long in the U.S. Senate. People remember what the Democrats -- including President Obama, Vice President Biden, Judiciary Committee Chairman Patrick Leahy -- did."

According to Crawford, this will ultimately change the public's perception of the Supreme Court.

"They not only voted against Sam Alito, who is just as qualified as Elena Kagan in really every way, had liberal support. They voted to block his nomination. So in some ways, what goes around comes around. She's going to get confirmed, but there's also a little bit of payback here, and she's not going to get 96 votes like Justice Ginsburg. And the - - the -- the problem with that is that it damages -- ultimately, the loser, it's not Elena Kagan. She's going to get confirmed. It's the courts. I mean, it makes the Supreme Court look in the people's mind politicized. When you have these bipartisan votes on qualified nominees, the danger is the court itself looks political. And I think that's a real problem long term."

And Crawford said she thinks this partisan gridlock needs to stop, regardless who is to blame.

"But, you know, I mean, listen, I mean, in some ways, it's like, you know, my 9-year-old will say, ‘You know, she started it,' referring to my 6-year-old," Crawford said. "At some point, somebody has got to be a grown- up and say, ‘Listen, I don't care who started it. We're going to stop it, and let's realize what the stakes are here.'"