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May 18, 2010

Republicans: Should We Really Fight Kagan?

Are Republicans actually so stupid that this is even a topic of discussion? According to Byron York, yeah, some might really still be this stupid.

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.

...But the bigger problem conservatives see is that the pro-Kagan statements put Republicans at a disadvantage before the confirmation even begins. "What Miguel (Estrada) and Ken (Starr) 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."

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.

The rules changed during the Bork and Thomas hearings, though Republicans didn't seem to get the memo during the Breyer and Ginsburg nominations. After Democrats led by the likes of Chuck Schumer, and one Barack Obama, made it clear they would never support nominees like Roberts and Alito, the idea that qualifications alone matter should have died forever.

In my ideal world, Presidents would have wide latitude and support for qualified nominees. Alas, we don't live in my ideal world. In this world, you simply oppose the nominees of a President from the other party because, well, he's the President from the other party.

We can't have a situation where Democrats play to the death and Republicans simply die.

All that said, I'm still don't think that Republicans should filibuster Kagan.

First, I think it's bad politics. Republicans don't have enough votes to sustain it or defeat her. You can rally the base and fight the good fight, without starting a war you are destined to lose

Second, I think Republicans made a strong case a few years ago that filibustering Supreme Court nominees was an abdication of a Constitutional responsibility. Are there case where it might be so bad an extreme action is required? I guess so. But as bad as Kagan is, she's not Goodwin Liu bad (I do want them to filibuster his appeals court nomination).

To fight her or not to is not an all or nothing proposition, remember neither Bork or Thomas were filibustered. Republicans can score a lot of points by simply holding her views up to the public as best they can, laying out the differences between conservative and liberal judicial philosophies and then voting no as a group.

Fortunately, the fine folks at the NY Times have provided the type of ammo Judiciary Committee Republicans can use this summer..

Writing about yesterday's 8th Amendment case, the Times shows how excited they are about detaching the court from the Constitution.

The majority’s opinion was particularly heartening for its forthright acknowledgment that there are other sources of judicial inspiration beyond the country’s founders. The low number of juvenile criminals sentenced to life without parole for noncapital crimes demonstrates that states, judges, prosecutors and juries have reached a de facto national consensus against the practice, the opinion said.

And, braving the catcalls of nativists, Justice Kennedy also looked to international law to bolster his argument, noting that this form of sentencing had been rejected by countries the world over. Until Monday, the United States was the only country to impose such sentences on its teenagers; thanks to five justices on the court, the world now stands in unanimous agreement.

There are reasonable arguments to be made against Florida's law allowing for juveniles to be sentenced to life in jail without any chance of release (beyond executive action such as commutation or pardon) but those are decisions for legislatures to make.

I'd love to see Kagan be asked what, if any other sources "sources of judicial inspiration beyond the country’s founders" she would apply in interpreting the Constitution. It's not to trip her up, she'll lie like Sotomayor did about not relying on international opinion or laws in making rulings but to make it clear to people the dangers in letting someone like Obama make these appointments.

Now, I know Anthony Kennedy, who wrote the horrible Graham decision (among many others), was appointed by Ronald Reagan. Thing is, Kennedy only go there because the Democrats played hardball and killed the Bork nomination.

If Bork (or Douglas Ginsburg who withdrew his nomination) got on the court, there's no Justice Kennedy and no list of crappy Kennedy decisions.

Well played Democrats, well played.

So yeah Republicans, fight the Kagan nomination. You probably won't win but you might land enough punches to hurt Democrats this fall. If nothing else, Republicans in the Senate need to make it clear we are playing by the same rules they are.


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posted by DrewM. at 01:31 PM

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