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.
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.