GOP Shirking From the Kagan Fight

May 17th, 2010 at 1:28 pm | 24 Comments |

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Over at The Weekly Standard Jim Prevor (who I do not know) has made an important point about the disequilibrium in judicial nominations between the Left and Right.  I have urged Republicans to vote against Kagan because in her most high profile decision she abandoned legal reasoning for liberal posturing.  Miguel Estrada has penned a request that she be confirmed, partly because she is no further Left than he is Right.  Mr. Prevor notes the disaster this kind of thinking would lead to if followed uncritically by the Right.

At the present moment Republicans have only 41Senate votes and those are not monolithically conservative.  It is, as a matter of math, difficult to defeat the Kagan nomination.  That does not mean Republicans should acquiesce.  The reasons are two-fold, one a matter of principal and one a matter of politics.  The Left’s view of Constitutional interpretation is in tension with the very concept of a written Constitution.  The Constitution is hard to amend so as to prevent instability.  Change is supposed to come from Congress, and to a lesser extent, the Presidency.  The Left narrative of using lifetime appointed judges to transform society undermines the very idea of written law.  Its attempts to drive religion from the public square, invalidate the institution of marriage, allow federal control of every aspect of American life, and to adopt foreign legal norms as our own destroys the entire idea of consent of the governed or a bill of rights for the minority.

The political advantage of fighting is immense.  Solicitor General Kagan’s office argued that a campaign finance law gave the government the power to ban books.  She herself intimated that it had not been used but that it was there.  This ought to be dynamite for any Republican.  Campaign finance laws are not in the constitution; freedom of the press is.  The same holds true on issue after issue.  Americans do not want foreign law consulted to determine what American law is.  They do not want marriage redefined.  They have never wanted these things in the history of the Republic.  Why should the Court be able to make it so by a 5-4 vote when its only power comes from the written Constitution of those very people?  On racial preferences, determining citizenship, the death penalty and eminent domain she is likely to hold positions wildly at variance with what America believes the Constitution means.  A Senate inquiry that makes this clear not only clarifies the choice in 2010 of every Senator but also helps to bring President Obama’s radicalism into focus.  To toss away such advantage because General Kagan went to Harvard and so must be “well qualified” is madness.

Our current court is a near miracle.  There are four votes that take originalism seriously and one vote that does so at least on alternate Tuesdays.  Moreover, Justice Breyer is cognizant of the tension between the written constitution and judging unmoored from text and history.  Justice Breyer is the counter-representative of my thesis.  His appointment by a weakened Bill Clinton was made possible because of his long association with Ted Kennedy and friendliness with Orrin Hatch.  Clubbiness won out.

The failure of Republican Presidents to take the appointment power seriously and to prepare for, and engage in political combat when necessary was on display in the appointment of Justice Souter and the initial choice of Harriet Miers.  Senate Republicans have also failed to fight on occasion, falling back to the clubbiness of a previous age.

Let us look at the other side.  The Senate Democrats do not allow moderates on the judiciary committee.  Lindsay Graham has no counterpart on the Democratic side.  Senator Leahy relentlessly demonizes any Republican appointee.  The current President voted against confirming both Justice Alito and Justice Roberts.  Both men have experience and resumes that eclipse Elena Kagan’s.  If clubbiness was the standard they should have sailed through.  Both drew double digit opposition from the Left.  General Kagan must draw at least as much from the Right.  Anything else feeds the lie that conservatives are inherently controversial but a nominee who blackballs the U.S. military on campus is just fine.  Over time, such an arrangement will lead to a Supreme Court untethered to the Constitution and far to the Left of the American people of any age.

There is, in the position of Mr. Estrada, much of the Tory preference for people over politics.  General Kagan is reportedly a very nice person.  The presumption that unless someone is personally unpleasant they cannot be opposed has never been a tenet of the Left (remember Sam Alito’s wife in tears at his hearing?).  We cannot afford to take the position “What is a Constitution among friends.”  Elena Kagan will likely be on the bench for 30 years or more.  She ought to have to go through the same gauntlet conservatives have to run before she does.


UPDATE:

Byron York chimes in on the Republican dilemma over Kagan.

Upon reading the comments below it appears some believe I want fighting to be the norm in Judiciary committee hearings on Supreme Court justices.  In fact, I don’t.  The easy time Justice Ginsberg and Justice Breyer had at the hands of Republicans, however, is not what happens to Republican nominees.  My view is that the spectacles and interest group driven vitriol directed at Republican nominees will only cease when Democratic nominees see the same ordeal facing them.  Conservatives attacked the independent counsel law for years.  It was only repealed when it gored Bill Clinton.  As long as it was embroiling Republican presidents the view of the great and good was that it was a vital check on power.  When Ken Starr (cited by Byron here) brought a liberal President low, the law unaccountably was allowed to lapse.  It is unreasonable to believe anything will restore peace to judicial confirmation hearings when only one side is treated harshly, and that side being the one more likely to judge in conformity with the written constitution.  I am all for the Ken Starr /Miguel Estrada standard on justices.  But not for having that standard apply only to Democratic presidents’ nominees.

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24 Comments so far ↓

  • Carney

    All excellent points. Republican-nominated justices and judges average about only 50% “conservative” or originalist. Democrat-nominated judges are in total lockstep – any public policy that displeases the left is “unconstitutional” and anything pleasing to the left is constitutionally mandatory — actual written text, history, and logic be damned.

    The Dems play for keeps, the GOP is more interested in seeming “reasonable” to Linda Greenhouse.

    As a result of this mismatch in commitment, consistency, and intensity, over time, the Overton Window on not only legal interpretation but public policy and cultural norms shifts relentlessly to the Left, and we are carefully encouraged to see this shift as a result of inevitable natural forces like the tides, rather than a result of poor strategy and failure to fight.

  • jakester

    Ho hum, talk about playing politics with the court, this guy is quite ironic.
    This is nothing more than warmed up cuppa old tea.

  • jakester

    Maybe at her inauguration party bbq, she’ll cook her plank salmon over a pyre of banned books. Which politician these days has a certified [past involving banned books? Sarah Palin, who fired the librarian who wouldn’t ban books her crackpot church didn’t like.

  • samgilbert

    Senate approvals of judicial appointments are theater at best. Drawn out, tiresome theater where we get to hear definitively (again) where each senator stands on abortion (but not the justice). Unless the justice is woefully unqualified, let’s just get it over with already.

  • mlindroo

    Vecchione wrote:
    > On racial preferences, determining citizenship, the death penalty and eminent
    > domain she is likely to hold positions wildly at variance with what America believes
    > the Constitution means.

    “What AMERICA believes?” The hubris is just breathtaking, as usual.

    Anyway, conservatives should realize they are not going to get anyone better than Kagan from this Administration. Furthermore, she can’t be stopped anyway since Scott Brown and Susan Collins have signaled they won’t try to block her.

    > There are four votes that take originalism seriously and one vote that does so at
    > least on alternate Tuesdays.

    …and fortunately, the “alternate Tuesdays” guy is 73. Wouldn’t it be sweet if he chose to retire while the One is still in office?:-)

    MARCU$

  • bamboozer

    So it’s Litmus Test Time again? No compromise, no deviation from the holy grail of “Originalism” and castigating the left for doing exactly what the right has done. What a surprise!

  • Carney

    bamboozer, the left is not doing what the right has done.

    If it did, about half the judges in nominated and approved of would be like Bork, whom it would wave through on grounds of credentials, temperament, and presidential prerogative.

    If it did, it would treat competing public policy goals and initiatives, especially ones touching on culture-war issues, as being part of the constitutionally permissible menu of options. But the left instead simply insists on treating its preferred policies as constitutionally mandatory and the right’s as forbidden. Few conservatives claim that the constitution mandates prayer in school, right to life policies, one-man one-woman marriage, etc., on unwilling states and on on unwilling Congress.

  • ktward

    It is, as a matter of math, difficult to defeat the Kagan nomination.

    True.
    Rendering the rest of this column useless yada. Best to preserve energy for the next Obama nominee.

    Americans do not want …

    So saith The Vecchione.

    Saith The Stewart:
    http://www.thedailyshow.com/watch/wed-may-5-2010/american-apparently
    I’m beginning to think ‘The American People” is a meaningless phrase. Cravenly used as a cudgel to project whatever provincial concerns a particular interest group may want to advance.

  • balconesfault

    Here’s Justice Kennedy speaking last week to a lawyer’s group in Florida:

    “An activist court is a court that makes a decision you don’t like”

    As for the attacks that Sotomayor would bring “empathy” to the bench:

    “You certainly can’t formulate principles without being aware of where those principles will take you, what their consequences will be. Law is a human exercise and if it ceases to be that it does not deserve the name law.”

    Somehow that doesn’t sound like just an umpire calling “Balls and Strikes”, does it?

  • Demosthenes

    I think every nominee to the Supreme Court should be vetted. The process is a complete joke. John Roberts was able to dodge every single substantive question without offering a clue that he was a far right wing extremist. Ditto for Alito. Imagine if they were forced to discuss their far right wing radical views. (e.g., re-writing the (1) 1st amendment so corporations become “people” and can openly buy politicians; and (2) 2nd amendment so it is impossible to keep the glut of dangerous weapons out of the hands of criminals and terrorits).

  • sinz54

    Kagan herself had written that the vetting and nomination process had been debased to the point that Supreme Court nominees could get by with meaningless answers. And that she wished that a nominee’s views could get a full airing and a full hearing.

    Hoisted on your own petard, my dear.
    The Senate Republicans are going to remind you of your own words.

  • State Policy Blog » Blog Archive » The Kagan nomination, May 18

    [...] FrumForum's John Vecchione and Eugene Volokh independently discuss the merits of fighting the Kagan nomination starting from opposite positions, and generally come to the same conclusion. [...]

  • Rabiner

    Why is the author so intent on the Constitution being interpreted by the philosophy of ‘originalism’? That’s the evangelical way of reading the bible and taking it word for word instead of looking at what it says in relation to the time it was written. Without looking at context (what originalism asks for) you fail to get a modern Constitution that can be applied to today’s society.

  • ottovbvs

    “The political advantage of fighting is immense.”

    ……Vecchione’s ideal……. a fully politicized bench……..it’s grotesque but this is where the minds of conservatives are these days and explains how these people are utterly debasing the process

  • Carney

    Rabiner, “looking at it in relation to the time it was written” is exactly what originalism calls for. If the text is ambiguous or (allegedly) debatable in meaning, you look at the men who wrote and ratified it for what they meant. The political / legal/ cultural context of the time, the debates, and the usage and meaning of language all affect it.

    You fear the absence of a ” a modern Constitution that can be applied to today’s society” – but there’s a proper process in place for updating it as necessary: the amendment process, as spelled out in Article V. The Founding Fathers were wise enough to understand that they could not foresee future circumstances and needs, and provided for change. Now they also set in place a high hurdle, requiring a sustained consensus from the polity for change to occur.

    This is how many constitutional change, most of which the Left would celebrate, has happened, from major changes such as giving blacks and women the vote, to minor ones such as banning poll taxes.

    It’s unfortunate that today’s Left is too lazy and dishonest to do it right, and prefers the cheating shortcut of fraudulently re-interpreting the written words to mean things they were never meant to mean, rather than doing the hard word of legitimately altering the written words themselves.

    The crucial point to understand is this. The idea that all text means only and solely what its authors and ratifiers intended it to mean, and nothing else, is not a sneaky way to force us all to become fundamentalist Christians. Let go of this deep fear.

    Instead, originalism is a key way to preserve your freedom. If free speech meant free speech in the Founding Fathers’ day, originalism makes sure it always means free speech into the future, without being “interpreted” away by some future judiciary that decides that the pressing needs of today and cultural changes have made that old interpretation obselete.

  • ottovbvs

    Carney // May 18, 2010 at 8:47 am

    “Instead, originalism is a key way to preserve your freedom.”

    ……..Conservative jurist’s like Scalia’s originalism tends to be highly selective…….quite apart from the fact that overly literal originalism would have meant about 12% of the population still being in bondage

  • balconesfault

    I’m still waiting to hear the “originalist” argument that Corporations are people. From Founding Fathers who fought the influence of the East India Company, I just can’t see it.

  • loki1967

    I think Kagan will be a way better Justice than Alito, Scalia, and Thomas could ever be combined. But that is easy. Anyone could be.

    The problem with the Constitution is that it is impossible to change due to the size of our government and volume of people. And thus it allows the oppression of minorities via a simple filibuster or a majority vote.

    And because of this people have to resort to the SCOTUS. Its not the right avenue. I believe Congress should pass laws. But often Congress fails and then we need Justices who will do the right thing. Stop being Sensate Judger followers who can’t think outside the box. Its like the Bible. many things in the Bible are wrong and many things outright evil. Its important as we grow as people and a society that we toss out the bad, stick with the good, and move forward.

    Elena is going to be an ok Justice. I just wish she was a bit more or a renegade vs being so vanilla.

  • LFC

    “Originalism” was used as the excuse for Scalia and Thomas to vote to uphold the anti-gay sodomy law in Texas. (Not an anti-sodomy law. Only gay sex was singled out.) The whole equal protection thingy didn’t seem to matter, just their opinion (with zero evidence) that well over 200 years ago the Founding Fathers would have said it was OK.

    They both also voted to shut down the Florida recount. A state’s right to select its own electors is pretty clear, and these guys are supposedly strong states rights guys, but that went out the window when their boy might lose.

    Scalia and Thomas are bad jokes that use “originalism” quite conveniently to justify ignoring case law while projecting their own opinions and agendas. They are the very models of activist judges.

  • ottovbvs

    LFC // May 18, 2010 at 11:48 am

    “They both also voted to shut down the Florida recount. A state’s right to select its own electors is pretty clear, and these guys are supposedly strong states rights guys, but that went out the window when their boy might lose. ”

    ………this was a totally egregious abuse of states rights as many have pointed out……but it’s the end product of a Republican campaign to totally politicise the judiciary by stacking it with extreme conservatives of the stamp of Scalia and Thomas so they can turn back progressive legislation or affect the outcome of elections…….underneath all the fancy language this is what it’s all about……..this is a classic of its kind from Carney

    ” This is how many constitutional change, most of which the Left would celebrate, has happened, from major changes such as giving blacks and women the vote, to minor ones such as banning poll taxes.

    It’s unfortunate that today’s Left is too lazy and dishonest to do it right,”

    ………..You have to wonder how cooperative the party of NO (which is dominated by senators and representatives from the South) would be passing on the 13th, 14th, 15th and 24th Amendments

  • LFC

    To get back on topic a bit, I personally would love to see a real hearing for Kagan. I want real questions on judicial philosophy and viewpoints on landmark decisions. If she dances and won’t answer them, then don’t vote for her. I’d love to see Senators say “I’m voting no for so and so because they refused to give real answers to the questions posed to them.”

    As pointed out above, Roberts and Alito had pretty light records and danced quite a bit at their confirmation hearings. They turned out to be activist judges, though not as horrendous as Scalia and Thomas.

    Sotomayor on the other hand, had a vast judicial record that could be reviewed. It didn’t give the right the ammo they wanted, but it was vast and showed somebody with extreme deference for the law.

    I don’t like the idea of law being made from the bench and I don’t want an activist judge. I would be much happier if Kagan had a record that could be reviewed independently and over time. I fear that the Senate hearing will be a joke.

    One amusing thing about the right-wing attacks on Sotomayor is the CT firefighter case they decided to latch onto. They whined about how horrible and unfair she was in the outcome of that case. In fact, she never heard that case. Only one small part was kicked “upstairs” to her court. For her to have waded into the actual decision as the right-wingnuts said she should have would have made her an activist judge, ignoring all court precedent to stick her nose into somewhere it had no business.

  • ktward

    sinz54 // May 17, 2010 at 7:11 pm:
    Kagan herself had written that the vetting and nomination process had been debased to the point that Supreme Court nominees could get by with meaningless answers. And that she wished that a nominee’s views could get a full airing and a full hearing. Hoisted on your own petard, my dear.
    The Senate Republicans are going to remind you of your own words.

    sinz, you’re usually more observant/well-informed than this, your comment, suggests.

    Kagna’s now infamous U of Cgo review of Carter’s The Confirmation Mess has traveled ALL over the blogosphere since her nom. Do you think this fact has escaped either Kagan’s or the WH’s attention?

    She will come prepared. As she most certainly should.

  • andydp

    Just my two cents’ but I believe the GOP will not waste their “Borking Chit” on Kagan. They will reserve it for when Justice Breyer decides to retire. THAT will bring out the “Nuclear Option”. I’m certain Dean Kagan will make an excellent justice regardless of her lack of judicial experience. Lack of bench expereince was not seen as a detriment in Chief Justice Renquist and Justice Thomas’ cases.

    Now to ask a rhetorical question: When Justice Alito said he had “empathy for the immigration issue” because his parents were immigrants (like mine) this was seen as a positive asset for a justice. When a Democratic nominee uses empathy in a sentence, its seen as destruction of the Constitution. Does anyone else see a double standard ? Or is Republican empathy different that Democratic empathy ?

  • ktward

    Just my two cents’ but I believe the GOP will not waste their “Borking Chit” on Kagan.

    Yeah, that was my two cents too. Although this is, I think, the fourth thread on Kagan, so maybe by now I’m up to nearly a dime. ;)