Why Kagan should be filibustered

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.

341 comments Add your comment

Tommy Maddox

June 30th, 2010
12:16 pm

Brian Morse

June 30th, 2010
12:22 pm

“This is a chance the charade”? Ever heard of proofreading…?

You know it's true

June 30th, 2010
12:27 pm

I bet you have no issue with activist judges like John Roberts and Samuel Alito. The founders didn’t even address campaign finance in the Constitution, but they acted they were defending liberty and the founders intentions.

I bet you had no problem with the incoherent Bush v. Gore decision that handed an election to W. I guess it’s only judicial activism or legislating from the bench if you disagree with the ruling.

WOW

June 30th, 2010
12:28 pm

“It’s not because of her mostly empty answers’

SHE??????? This whole time I was thinking Kagan was a man!!!!!!!!!!

WOW

June 30th, 2010
12:29 pm

“bet you have no issue with activist judges like John Roberts and Samuel Alito.’

They both had held positions as judges.

But hey, if Kagan is filibustered he can always enter the Guinness Book of World Records as World’s ugliest woman.

No More Progressives!

June 30th, 2010
12:31 pm

You know it’s true

June 30th, 2010
12:27 pm
I bet you have no issue with activist judges like John Roberts and Samuel Alito.

You forgot Clarence Thomas.

And the 9th Circuit Court of Appeals.

HDB

June 30th, 2010
12:33 pm

What’s really disturbing about the confirmation hearings is the path the questioning has taken from Jeff Sessions and Southern Republicans denigrating Thurgood Marshall! It’s further proof of the animosity that Southern Republicans have towards Americans, minorities, and the process in totalia.

Wes

June 30th, 2010
12:44 pm

Kyle,

There is no need for a filibuster on this. The senators merely need to ask the questions until they are satisfied with the answers. If she refuses to answer the confirmation process isn’t over.

Personally I doubt that there is any desire on the part of the senators to do this.

WOW

June 30th, 2010
12:44 pm

“You forgot Clarence Thomas. ”

Why do you hate black people?

No More Progressives!

June 30th, 2010
12:45 pm

“In her own hand: Kagan’s manipulation on partial-birth abortion……”

http://hotair.com/archives/2010/06/30/in-her-own-hand-kagans-manipulation-on-partial-birth-abortion/

WOW

June 30th, 2010
12:45 pm

“Southern Republicans have towards Americans, minorities, and the process in totalia.”

HDB, Delta is ready when you are.

WOW

June 30th, 2010
12:47 pm

“There is no need for a filibuster on this.”

Sure there is. If they filibuster, Obama will have to go back and pick another judge and it will take months to get back to the hearings. By then, the Democrats will be in the minority again and Obama will be a lame duck.

It’s called strategery.

Mary

June 30th, 2010
12:49 pm

Definitely a Republican speaking !!!

No More Progressives!

June 30th, 2010
12:49 pm

HDB

June 30th, 2010
12:33 pm

It’s further proof of the animosity that Southern Republicans have towards Americans, minorities………..

You’re Jesse Jackson in cognito, aren’t you? Or Al Sharpton…….right? All you ever do is whine about race. What, if by chance, Thurgood Marshall was wrong once or twice? Will your world end?

WOW

June 30th, 2010
12:50 pm

“What’s really disturbing about the confirmation hearings is the path the questioning has taken from Jeff Sessions and Southern Republicans denigrating Thurgood Marshall”

Oh, so it’s perfectly fine for Robert Byrd to hang black people, but when a white guy from the south, who is a non KKK member, asks some questions to the he/she it’s somehow “disturbing?”

No HDB, what’s disturbing is the fact that you give people like Robert Byrd a free pass.

WOW

June 30th, 2010
12:50 pm

No More Progressives!

You gotta understand, without race hustling, HDB would have nothing to cry about.

Ragnar Danneskjöld

June 30th, 2010
12:52 pm

The definition of “activist judge” for a conservative is “a judge who makes up law where there is none.” The definition of “activist judge” for a leftist is “a judge who will overrule prior leftist expansionary readings of the constitution and apply the plain language of the constitution.”

For example, leftists think the founding fathers, via the second amendment to the Constitution, wanted to make sure that government could prevent people from keeping a handgun in the home, or perhaps that individuals should never be allowed personal defense by any weapon other than a flintlock rifle. Conservatives, on that issue, think the founding fathers intended that individuals should be allowed to keep weapons to defend themselves against an abusive central government, much like the one then-recently revolted against,

Leftists think that the formation of the US government would never have occurred if founding fathers thought a state would prohibit the sale of oral contraceptives.

Leftists think the republic would never have formed if the death penalty had been permitted use by the states.

Leftists think the speech protected by the first amendment is “pole dancing” and “pornography”, but could not possibly include buying a commercial to oppose legislative actions by the Congress.

Leftist bar military recruiters from the campuses of premier law schools.

Lil' Barry Bailout

June 30th, 2010
12:52 pm

Kagan should be filibustered because she’s just told us that she sees nothing in the Constitution that limits the power of the federal government to involve itself in things it has no business in. One suspects, however, that her support of totalitarian government would be limited to those times when a Democrat is in office.

HDB

June 30th, 2010
12:55 pm

WOW June 30th, 2010
12:50 pm

Having noted Jeff Session’s animosity for being turned DOWN for a federal judgeship…and he’s turned that animosity into resentment towards anyone that a Democrat brings up towards confirmation. He’s also denigrating a man whose paradigm was “equal protection under the LAW”!

Are you for giving Ronald Reagan a free pass when he spoke in favor of segregation? Are you for giving John McCain a free pass for his anti-minority voting record? I didn’t give Robert Byrd a free pass…but at least the man repented for his mistakes….and his voting record subsequently was pro-civil rights. I can forgive someone who has asked for the same…….

No More Progressives!

June 30th, 2010
12:56 pm

Crud. Shoulda said “incognito.”

My bad. But HDB will never pick it up.

WOW

June 30th, 2010
12:58 pm

Lil’ Barry Bailout

Kagan should be filibustered simply because she had people thinking that she was a man.

HDB

June 30th, 2010
12:59 pm

Ragnar Danneskjöld June 30th, 2010
12:52 pm

Question: if conservatives say an activist judge “makes up law wher there is none”…..would you say that the overturning of Plessy vs. Ferguson and Brown vs. Board of Education was an activist action….or a conservative action so that ALL Americans receive constitutional protection??

Jason

June 30th, 2010
1:00 pm

Kyle Rightwingfield,

You’re go to great length to claim as part of your argument that you are not partisan? The rest of your argument is about not only evasiveness, but being misleading?

What a total laugher! You have zero credibility or honesty here. You are not only demuring your partisanship, you are lying and it could not be more obvious.

Even if you weren’t a wolf in sheep’s clothing, the action against a Supreme Court nominee you suggest, trying to block her from the seat just to “send a message” about how hearings are conducted is totally misplaced. There are proper ways of dealing with that and it starts with the Congress acting in a forthright manner, not with a tactic that subverts the action of it’s own body.

Finally, punishing one person for another person’s crimes is the sole province of God, sir.

WOW

June 30th, 2010
1:02 pm

“He’s also denigrating a man whose paradigm was “equal protection under the LAW”!”

SEEEEEEE, HDB thinks Kagan is a man to!

“Are you for giving Ronald Reagan a free pass when he spoke in favor of segregation?”

Did Reagan hang black people? No.

I’m not familiar with any “segregation” speeches from Reagan. Please post the speech.

“Are you for giving John McCain a free pass for his anti-minority voting record?”

Illegal aliens aren’t legal voters dim wit.

“and his voting record subsequently was pro-civil rights.”

He voted against the Civil Rights Bill. Geez HDB, did you learn US History by reading the Communist Manifesto?

“I can forgive someone who has asked for the same…….”

Ever occur to you that he wanted votes?

WOW

June 30th, 2010
1:02 pm

“You’re go to great length ”

Grammar fail.

WOW

June 30th, 2010
1:03 pm

“You are not only demuring your partisanship, you are lying and it could not be more obvious.”

More grammar failure.

F. Sinkwich

June 30th, 2010
1:03 pm

It’s interesting but not surprising that progressives like Sotomayer and Kagan do their best to hide their real beliefs when answering questions at these confirmation hearings. It’s like they’re ashamed of their liberal ideology. Why?

Hey, Kagan, you’re a progressive, man up to it! You hate the military, want guns to be illegal, want conservative speech curtailed, and much prefer equality of outcomes over equality of opportunity.

We all know your agenda, why don’t you own up to it?

Oh, yeah. Because you won’t get confirmed if you tell the truth about yourself.

HDB

June 30th, 2010
1:03 pm

No More Progressives!

June 30th, 2010
12:49 pm
HDB

June 30th, 2010
12:33 pm

It’s further proof of the animosity that Southern Republicans have towards Americans, minorities………..

All you ever do is whine about race. What, if by chance, Thurgood Marshall was wrong once or twice? Will your world end?

What, if by chance, that Thurgood Marshall was RIGHT…..Brown vs. Board of Education……??
Will my world end? Yes…when death falls upon me…..

I don’t whine about race…..but I see more of the inequities than you do….and when that’s brought forth, you tend to minimize it……..

WOW

June 30th, 2010
1:04 pm

“Finally, punishing one person for another person’s crimes is the sole province of God, sir.”

????????????

WOW

June 30th, 2010
1:05 pm

“I don’t whine about race”

Honesty isn’t your strong suit, HDB.

WOW

June 30th, 2010
1:09 pm

Anyone else find it interesting that HDB only sees Republicans as racist?

Robert Byrd hung black people but was a Democrat. HDB is ok with that.

No More Progressives!

June 30th, 2010
1:10 pm

HDB

June 30th, 2010
1:03 pm
but I see more of the inequities than you do….and when that’s brought forth, you tend to minimize it……..

Name two (2) inequities I don’t recognize.

Lourdes

June 30th, 2010
1:10 pm

Let them all in, it will be anarchy, whoop dee-doo. Whomever is nominated by either party, let them in and move on to more important issues like their daily martini lunches….

neo-Carlinist

June 30th, 2010
1:11 pm

just got back from Bob’s blog – filibuster her behind because she wants to take the peanuts from my cold dead hand. replacing a liberal justice with a different liberal justice is a push at best. as I see it, maybe we need to take the 2nd amendment out of the courts, and put it in the street – “when they kick at your front door, how you gonna come? with your hands on your head, or on the trigger of your gun?” Guns of Brixton, The Clash. there is not a justice or politicia who will touch the second amendment because that would be the Bunker Hill, Fort Sumpter, and Pearl Harbor all roled into one. we’ll keep playing this nickel and dime game, and Palin and the NRA will wring their hands, and Sarah Brady and the left will gnash their teeth, but the dootie will really hit the fan if a “right” guaranteed by the BILL OF RIGHTS becomes a wrong. not gonna happen folks. not gonna happen.

WOW

June 30th, 2010
1:13 pm

Proof that Democrats don’t want to clean up the oil spill. Democrats are evil.

Oil spill visits get partisan

Rep. Steve Scalise (R-La.) wanted to fly 10 lawmakers down to the Gulf of Mexico to see the damage caused by BP’s gigantic oil spill first hand.

House Democrats said no.

http://www.politico.com/news/stories/0610/39225.html

WOW

June 30th, 2010
1:15 pm

Obama makes Jimmy Carter look good.

Obama Mocked Commissions, Then Established Four

Mr. Obama established the commission in February, saying debt and deficits can “hobble our economy” and “saddle every child in America with an intolerable burden.”

Yet the president’s decision to establish a commission to address a problem he described as potentially catastrophic seems odd in light of his earlier criticism of commissions in general. As Ari Shapiro noted on National Public Radio today, the president mocked the notion of commissions to address problems back when he was a candidate.

http://www.cbsnews.com/8301-503544_162-20009286-503544.html

CrazyInGA

June 30th, 2010
1:21 pm

Kagan will be confirmed because the CRAZY Republicans will be called out for all the hypocrisy they possess. And Jeff Sessions is an idiot.

Jason

June 30th, 2010
1:25 pm

WOW, another troll on the dole.

WOW

June 30th, 2010
1:27 pm

Jason, another high school drop out who’s playing on his inbred mom’s puter.

Sandra

June 30th, 2010
1:28 pm

Kyle,
Your total partianship is showing. Stop pretending you’re playing fair. Alito and Roberts could both be considered to have been lying through their teeth based on what they said at their confirmation hearings about ’settled law’ versus what they have actually done.

I always try to understand both sides of any situation but reading some of your stuff is difficult to wade through. Can you just give us facts versus your opinion on everything? I am perfectly capable of making up my own mind.

CJ

June 30th, 2010
1:34 pm

Kyle, yet again, demonstrates that he is an unabashed, right-wing hack.

He clearly seeks to box nominees of a Democratic president into a lose/lose situation whereby they either won’t be confirmed for explicitly stating their views or they won’t be confirmed for not explicitly stating their views. Kyle, of course, has had enough when he believes that he has evidence that a previous Democratic nominee mislead the judicial committee (he doesn’t).

Did Kyle insist that Roberts, Alito, or the scores of other Bush nominees to federal courts explicitly state their positions on privacy rights (e.g., Roe v. Wade) or whether corporations have rights under the Constitution? Of course not. While Kyle’s faux evidence that Sotomayor mislead the Judicial Committee amounts to a statement made by Senator Leahy and dissension written by Justice Breyer, he ignores multiple decisions by Chief Justice John Roberts, for example, that contradict his statements to the committee regarding the principle of stare decisis. Roberts claimed at the time, “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness. It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided…” Roberts, it appears, lied.

Nevertheless, scores of Republican and Democratic judicial nominees seeking confirmation by the Senate whether the nomination was federal districts courts, courts of appeals, or the supreme court, have learned the lesson of Robert Bork and deliberately avoided offering statements that can be regarded as controversial by the other party. (That said, it’s worth noting that although minority Senate Dems filibustered ten of Bush’s judicial nominees to lower level federal courts, majority Republicans prevented 55 Clinton nominees from getting votes by refusing to give them a hearing in the judicial committee plus refusing to schedule votes on the floor of the Senate for ten additional Clinton nominees who made it out of committee).

Incidentally, where was Kyle when Republicans were complaining during the Bush administration that preventing an up or down vote on judicial nominees for lower federal courts was unconstitutional and threatened the nuclear option (i.e., voting to change the rules so that the minority party couldn’t filibuster)? I look forward to reading the article where Kyle criticized the GOP for taking this stance.

Kyle wrote, “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,…” Enough is enough…now that a Democrat is in the White House.

HDB

June 30th, 2010
1:35 pm

No More Progressives!

June 30th, 2010
1:10 pm
HDB

June 30th, 2010
1:03 pm
but I see more of the inequities than you do….and when that’s brought forth, you tend to minimize it……..

Name two (2) inequities I don’t recognize.

OK: 1- Sentencing guidelines: Same crime…black people aree sentenced LONGER
2. Employment – Black unemployment rate DOUBLE the rate of the preponderance of Americans
3. Republican Representation of Black people – NO Black Republicans since JC Watts; only 105 delegates to the past GOP Convention……

That’s just the beginning……

Since people are bringing up Robert Byrd…..at least the man asked for forgiveness and repented for his past……

….from wikipedia…..

He also opposed the Voting Rights Act of 1965 but voted for the Civil Rights Act of 1968.

In the National Association for the Advancement of Colored People’s (NAACP)[66] Congressional Report Card for the 108th Congress (spanning the 2003–2004 congressional session), Byrd was awarded with an approval rating of 100 percent for favoring the NAACP’s position in all 33 bills presented to the United States Senate regarding issues of their concern. Only 16 other senators received that approval rating in the session. In June 2005, Byrd proposed an additional $10 million in federal funding for the Martin Luther King, Jr. National Memorial in Washington, D.C., remarking that “With the passage of time, we have come to learn that his Dream was the American Dream, and few ever expressed it more eloquently.”[67]

People keep saying that I feel only Republicans are racists….but there HAVE been Republicans that I could’ve voted for….Lowell Weicker from Connecticut and Howard Baker of Tennessee…so that statement is false!!

People also wish to revise Reagan’s history:
…from Time:

1) As a young congressman, Lott was among those who urged Reagan to deliver his first major campaign speech in Philadelphia, Mississippi, where three civil rights workers were murdered in one of the 1960s’ ugliest cases of racist violence. It was a ringing declaration of his support for “states’ rights” — a code word for resistance to black advances clearly understood by white Southern voters.
2) Reagan was against the MLK Holiday…spearheaded by John McCain and Jesse Helms…but when faced by an overriding of his Presidential veto (Congress passed it with an overwhelming veto-proof majority (338 to 90 in the House of Representatives and 78 to 22 in the Senate)….he signed the bill
3) Reagan fought to revoke the Internal Revenue Service’s authority to deny charitable tax exemptions to the school (Bob Jones University). The denial was over the school’s ban on interracial dating. The Supreme Court, in an 8-1 decision, rebuked Reagan, saying schools that practice racial segregation can indeed be denied tax exemptions. Reagan would later appoint the lone dissenter, William Rehnquist, to chief justice.

Counterpoint???

jconservative

June 30th, 2010
1:38 pm

Wingfield I fear you are treading on the shredding of the Constitution.
Article 2, Section 2 says “…and he shall nominate, and by and with the Advice and Consent of the Senate,…Judges of the supreme Court,…”.

The Constitution is clear that the Senate shall “Advise and Consent” on each nominee. Sotomayor is over and done with and history. Roberts & Alito (both stating that Roe v Wade is settled law) are over & done with and history. Kagan is before the committee. If any Senator votes for or against her nomination, for any reason besides her qualifications, he is in violation of his duty to the Constitution. If Roberts votes to overturn Roe are you going to demand his impeachment for lying to Congress? No you are not.

The sham is the conduct of the Senate in trying to force a nominee to agree to a certain outcome on a case all know is coming. The sham is the Senate using the occassion of advise & conscent to appeal to their political base.

As we are all fond of saying, elections have consequences.

And you are correct that Justices do have a habit of saying one thing in the confirmation hearings and another after they are on the court. Roberts left one with the impression that he was a “states rights” supporter. But now the Roberts court is easily going to catch the Warren court in decreasing states rights and increasing the authority of the central government. As Alito said in the McDonald opinion “…JUSTICE BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States,…”

And, please, this case, McDonald, is less about the 2nd Amendment and more about whether the 14th Amendment incorporated the 2nd Amendment against the States. All the concurring and dissenting opinions address this issue as this was the central issue of the case.

Heller and McDonald, two 5 – 4 decisions. We 2nd Amendments fans are still treading on thin ice.

WOW

June 30th, 2010
1:38 pm

“People also wish to revise Reagan’s history:”

Yeah, people like you. Please provide an accurate piece on Reagan’s “supposed racism” so we can read it.

Jose

June 30th, 2010
1:41 pm

HDP, if it wasn’t for republicans civil rights would not have been passed. Al, “the poodle” Gore’s own dad voted against the bill. The difference is dems saw a way to use social programs to keep minorities dependent and the dem party and now thanks to this thinking, are the largest slave owners in the free world today. And as far as Reagan goes, Obama couldn’t be a pimple on Regan’s butt. However, he matches up just fine with peanut head Carter.

WOW

June 30th, 2010
1:41 pm

“….from wikipedia…..”

HDB, try reading a history book instead of a website where anyone can re-write the content.

WOW

June 30th, 2010
1:42 pm

HDB

The KKK was founded by the Democrat Party.

Kyle Wingfield

June 30th, 2010
1:45 pm

Brian Morse: Thanks, I missed that one. It’s fixed now.

Sandra: This is an *opinion* column. That’s why I give my opinions here.

CJ: So, because I wasn’t writing a column back when Bush was nominating judges, I don’t get to voice an opinion now? I don’t know how much clearer I could have been that this is a longstanding problem that transcends party.

Williebkind

June 30th, 2010
1:45 pm

Thurgood Marshall!

You mean the justice who invented legislating from the bench.

WOW

June 30th, 2010
1:45 pm

“Counterpoint???”

HDB, anyone who has read your posts from over the past few months can easily come to the conclusion that you’re a big fat hypocrite. They can also come to the conclusion that you see everything as a race issue.

Sucks to be you.