Senators should filibuster Supreme Court nominee Elena Kagan. Here’s why.
It’s not because of her mostly empty answers to the mostly easy questions posed by members of the Senate Judiciary Committee during this week’s hearings. It’s not even because she hinted at an extremely expansive view of Congress’s ability to put mandates on our everyday lives when Sen. Tom Coburn (R., Okla.) asked her whether it would be constitutional for legislators to require Americans to eat three vegetables and three fruits a day, and she demurred.
No, the reason Senators should filibuster Kagan is Sonia Sotomayor.
The Senate confirmed Sotomayor last year as President Obama’s first appointment to the Supreme Court. Like Kagan, and like pretty much every nominee to the high court since Robert Bork was demonized by Ted Kennedy and blocked by Senate Democrats, Sotomayor cruised to confirmation by refusing to tip her hand as to how she would rule on certain issues.
But already we can see that the confirmation process as it’s been conducted the past quarter-century has yielded more than evasiveness. As Jonah Goldberg writes at Townhall.com, in the McDonald vs. Chicago gun-rights case that the Supreme Court ruled on this week,
[Sotomayor] concurred with Justice Stephen Breyer’s dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes,” Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right?”
“Yes, sir,” she replied.
Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That’s why Leahy asked the questions the way he did, and that’s why Sotomayor answered them the way she did. It’s also why he spun her answers into more than they were: “I do not see how any fair observer could regard (Sotomayor’s) testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.” He made it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn’t. (As a judge, she was hardly a hero of the NRA.)
Whether you are a liberal or a conservative or something in between, I’d hope you could agree with me that a confirmation process in which nominees say so little of substance, and yet manage to be misleading nonetheless, is a sham. Enough is enough.
If the Senate is going to insist on a process that’s more than a formality, the process ought to mean something. Either that, or we should go back to the pre-Bork era.
(And, lest someone accuses me of partisanship: I haven’t researched the record of every confirmation hearing since Bork and compared the nominees’ comments to their record on the bench. But I will stipulate that Sotomayor is probably not the first justice to issue a ruling at odds with her statements as a nominee, and that this probably isn’t a problem confined to one end of the ideological spectrum.)
So, why should Kagan now pay for the sins of Sotomayor and others?
Because she probably won’t be the last person nominated to the court by Barack Obama, and if the Senate is going to send a message about the way nominees are expected to perform at confirmation hearings, it has to be sent to a president who will be in a position to do something about it.
I suppose the message could get through to a future president, and I don’t really care whether that president might be a Republican or a Democrat. But I think it would be communicated most clearly right now, and Obama’s the president right now.
This is a chance to end the charade. Either senators do it now, or they stop grumbling about the farce that they insist on carrying out.