In 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. Senator Orrin Hatch of Utah, the chairman of the Judiciary Committee, refused to even schedule a hearing. Hatch wanted the seat left open so a Republican president could fill it after the 2000 election, should the GOP regain the White House.

Kagan’s nomination died when Clinton left office.

Playing out the clock with an election on the horizon is not a Republican invention. Both sides play that one.

You could even choose to admire the strategy because it works. In this case, the seat on the D.C. Court of Appeals was filled by George W. Bush with none other than John Roberts, who served there until Bush elevated him to Chief Justice of the Supreme Court in 2005. I won’t squawk about that; again, both sides do it. It’s politics.

But it doesn’t pass the smell test now when Republicans in the Senate point to Kagan’s lack of judicial experience as a flaw in her curriculum vitae, since they were the ones who did not allow her to get that very experience.

Progressives can bellyache all they want to about this. They didn’t keep her from a position that would now be informing them whether or not Kagan is reliably liberal enough to get excited about. Hatch blackballed her, even though he has spoken openly of her brilliance. And the ploy worked. They got Roberts into position for his promotion when the actuarial tables claimed William Rehnquist.

It is worth noting, however, that Hatch may have been too clever by half. What if Kagan really is the incarnation of her mentor Thurgood Marshall? What if she turns out to be the great liberal hope?

Progressives are worried that Kagan will not be liberal enough. They tried to get her into the game. Republicans passed on their chance to drag her positions into the light of day ten years ago. They could have vetted her on the Court of Appeals, but now she stands a good chance of going straight to The Show without either side knowing where she really stands.

When Dwight Eisenhower was asked at the end of his second term if he had any regrets, he said, “Two of them, and they’re both sitting on the Supreme Court.” He was referring to Earl Warren and William Brennan.

It is hard to believe that Barack Obama sent up this nomination – choosing a woman who just turned fifty thirteen days ago and thus could sustain his legacy for more than thirty years – without some kind of inside confidence that she would laboring from the left long after Nino Scalia has vacated his seat.

There is no way of knowing who Elena Kagan will become during her time on the Supreme Court, but if I had to place a bet, I’d say it’s the Republicans who are about to get snookered on this deal.

By the time Obama leaves office it may be Orrin Hatch who lives with queasy Eisenhower regret in the pit of his stomach.