With yesterday’s Senate confirmation, Elena Kagan is now a Supreme Court justice. She has the intellect and experience to do well in that post.
For the moment, though, I’d like to focus on the fact that 37 senators voted against her confirmation, which is perilously close to the 40 votes that would have been required to filibuster her nomination. I think that’s an ominous sign, confirming a sense that American government is coming close to a breakdown.
As an Obama nominee, Kagan is of course going to be different than, say, a Palin or Romney or Gingrich nominee. That’s how the system works. The right to make such nominations is part of the “spoils of war” that come with winning the presidency. Historically, the Senate has respected that reality.
Kagan is also well within the legal mainstream and eminently qualified for the court. In fact, one of the worst things you could say about her is that she has spent her life and career trying to avoid controversies that might prevent confirmation. Some Senate Republicans have tried to make an issue of the fact that she had never served as a judge, but on that too she falls well within the historical norm. Roughly a third of our Supreme Court justices had no prior experience on the bench, including the late Chief Justice William Rehnquist, who became a conservative legal icon.
So the fact that 37 senators nonetheless voted against an utterly mainstream, determinedly “safe” nominee such as Kagan ought to be taken as a serious warning sign. Most of those votes weren’t against her as a individual, they were a statement of general political opposition and would have been cast against any nominee that Obama was likely to propose.
“We are well on our way to a huge train wreck,” Tom Goldstein, a veteran Supreme Court litigator, told Politico. “I do think this is a corner we won’t be able to turn back [from], or at least there’s no sign the Senate will turn back from, for a long time.” If 60 “yes” votes “is the best anyone is going to have, a Supreme Court confirmation fight could easily turn into thermonuclear war.”
Sen. Lindsay Graham, one of five Republicans to vote for Kagan, is among those worried.
“Things are changing,” he said. “I worry the direction we’re drifting. I don’t question any of my colleagues’ decisions; I would just like to get us back to more traditional ‘advice and consent,’ where the [presidential] election is respected. I worry about where this takes us as a nation with the judiciary.”
In 1986, Antonin Scalia was confirmed by 98-0. Five years ago, John Roberts was confirmed by a vote of 78-22, with 22 Democrats voting for him. In 2006, Samuel Alito was confirmed by just 58-42, with just four Democrats voting for him, indicating that both parties are edging closer to the line. As Graham notes, the trend is ominous, threatening not just future Supreme Court nominees but the overall ability of government to conduct necessary business.