An imaginary GOP dilemma
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 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."
"President Obama has chosen someone who is very qualified," Starr concluded.
[First, I disagree with Mr. Starr. Yes, she is educated, and yes she is smart, but I'd hardly call her qualified. Her past views regarding the First and Second Amendments clearly shows, at least to me, that she doesn't understand either amendment, or the rights guaranteed to the citizens of the United States. In my opinion, to sit on the high court and deal with matters concerning the Constitution, one should at least have a plenary understanding of the document, and that which was written 233 years ago.]
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.)
[Before anyone steps up in an attempt to crucify Mr. Estrada, they need to take into consideration that he wrote the letter, without any prompting by Ms. Kagan, on her behalf. This was a favor to a friend that wasn't asked for, but he felt it was necessary, despite how he was treated by Senate Democrats during President Bush's terms in office. His endorsement of Ms. Kagan is literally no different from Sarah Palin's endorsement of John McCain in his Senate reelection bid. People need to remember that these sorts of favors happen all the time, and while we may disagree with them, it doesn't change the person who passed along the favor.]
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.
But the bigger problem conservatives see is that the pro-Kagan statements put Republicans at a disadvantage before the confirmation even begins. "What Miguel and Ken are trying to demonstrate is that the president deserves to have his nominees confirmed as long as they are qualified," says one GOP Senate aide. "The problem is the Democrats don't do that, and so you unilaterally disarm."
[That aide is correct, and this is where the crux of the GOP's dilemma comes from: The Democrats will cite those that are friendly to Republicans as examples of those supporting her based on her qualifications. The problem is, and Republicans will have to find a way to do this, is that until the hearings start they can't make an argument over her qualifications. And while the president is afforded his constitutionally-mandated powers to nominate federal officers, the Senate still has a job to do. They still need to vet her, and her hearings will be where the fight takes place. If she is qualified, she'll pass out of committee handily. If not, then there will be a fight.]
Indeed, among Republicans "unilateral disarmament" has become shorthand for the divide between two competing ways of approaching the Kagan nomination. "This debate is the people who have a traditional way of looking at these procedural questions -- 'This is the way it's been done and this is the way to do it' -- versus the people who say the Democrats have changed the rules and we should respond in kind," the aide says.
That's not an exaggeration. Regardless of all the talk about a nominee's qualifications, some leading Democrats have for years worked to establish a new, openly ideological standard for judicial confirmations. In 2001, Sen. Charles Schumer, one of Kagan's top supporters, held a hearing titled, "Should Ideology Matter?" His position was (and is) that senators should reject qualified nominees simply because of their views on issues. Schumer would like to put an end to the idea that the Senate owes the president confirmation of qualified nominees.
"This unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition," Schumer said at the 2001 hearing. "This, in turn, has led to an escalating war of 'gotcha' politics." Schumer's solution was for the Senate to dump nominees who hold views unacceptable to Charles Schumer.
[Schumer is a moron. Ideology -- political ideology -- should have nothing to do with these hearings. If one is a self-described liberal, but upholds the rule of law, and the belief that the Constitution says what it means, and means what it says, then there shouldn't be any opposition to such a nominee. Our general dislike of Ms. Kagan has nothing to do with her political ideology. It has everything to do with her judicial philosophy -- how she views the Constitution, and the limits of a Supreme Court justice's powers. If she is an activist, believing in the rule of judicial fiat (and her past views paint that sort of picture) then she shouldn't be confirmed. And another thing that should be taken into account is the fact that two sitting SCOTUS jurists were rather unimpressed by her when she argued the Citizen's United case before the Supreme Court, and they were equally frustrated with her apparent inability to answer their questions.]
Over at NRO's Bench Memos Ed Whelan has a solution to the dilemma that was offered by Eugene Volokh yesterday:
"It seems to me that the sensible thing for Republicans to do is to use the Kagan nomination as a means of persuading the public that the Republicans’ vision of the Constitution is sounder than the Obama Administration’s vision of the Constitution.… So the Republicans could talk about (say) gun rights, the use of foreign law, same-sex marriage, the use of religious symbolism in government speech, and so on — not with an eye towards to defeating Kagan in the Summer, but to defeating the Democrats in November. That, I think, is a strategy that might actually succeed, and might actually help advance conservative political and legal ideals."
Now, why take this approach? Because it comes down to simple numbers, folks. the Democrats have the majority on the Senate Judiciary Committee, and they have fifty-nine guaranteed votes in the Senate. And mark my words, there will be Republican defectors that will vote for her confirmation. Last week the WaPo reported that both Scott Brown and Susan Collins have "warmed" to the idea of her being confirmed. So with that in mind, the Democrats have at least sixty-one votes, and there is no way to block her confirmation to the Supreme Court. Does this mean we should just give up? Not hardly. I recall a post up at SCOTUS Reports where they quote from a recent article by Rick Garrett:
Rick Garnett, professor of law and associate dean of University of Notre Dame Law School, and former law clerk for Chief Justice Rehnquist: “Elections matter, and the election of President Obama has turned out to matter a great deal for the future decisions and direction of Supreme Court. With the nomination of Solicitor General Kagan, the President has taken a significant step toward reshaping the Court and its work for generations. No one should think that this nomination is inconsequential, or that it changes little because it involves merely replacing one liberal justice with another. A conservative might someday win back the White House, but any future Republican president will be playing defense with his or her Supreme Court selections. With his second Supreme Court pick — and, to be clear, he will almost certainly have more — the President is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely.”
And then there is the laundry list of concerns from Ed Whelan regarding Ms. Kagan.
Elections do have consequences, and we seem to reaping quite a bit of them right now. But just because Barry won, and he has the right to nominate federal officers doesn't mean they should all be confirmed. This is an ideal time to truly make a distinction between the GOP's view of America, and of the Constitution (as Eugene Volokh as offered), and the Democrats. Make no mistake. The Democrats will win this fight, but it could cost them the war in November.