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.
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341 comments Add your comment
Any one but a Conservative
June 30th, 2010
2:22 pm
obstinate not abstinent
WOW
June 30th, 2010
2:22 pm
“his approval rating would be 55-60 percent.”
if..if..if…if……..
Jose
June 30th, 2010
2:23 pm
Anyone but a conservative, you are on crack or meth. This administration is so on the lunatic fringe it is not funny. Your side has toal control and you still blame the right. That is the problem with you libtards today. You refuse to grow up and take responsibility for your issues. 2010 and 2012 you will loose your TOTAL responsibility and get the hell out of Dodge.
WOW
June 30th, 2010
2:24 pm
“What Obama did to get out the black vote in 2008″
He didn’t do anything. Blacks always vote black.
luangtom
June 30th, 2010
2:25 pm
Seems everything in the AJC gets around to the race-card. Seems the AJC still wants us to “pay for the sins of our fathers” in everything that they see fit to put forth as news. Who gives a rip? This is now and not the 1960’s or earlier. I owe no one a thing, nor do you or any other reader of this rag. Get to the point of the matter, B. Hussein Obama is set on a course that will not be for the benefit of the country. Hell, he was on TV in one of his sound-bites yesterday and told the world that the US economy was improving and the ploy to spill more phony money into the programs he promotes will only help it. His bail-out money is not creating jobs, it is not saving jobs. As he spoke, the DOW tanked close to 300-points. So, dear readers, seeing his judgment and opinion on matters of importance seem to be off-target, just how is this appointment to the SCOTUS beneficial to the US?
Yes, filibuster and get answers or throw her out. An inexperienced President is bad enough, now an inexperienced and non-judge sitting on the bench of the highest court in the land is getting a bit far-fetched. Filibuster…………..
Mr. Holmes
June 30th, 2010
2:26 pm
“…now an inexperienced and non-judge sitting on the bench of the highest court in the land is getting a bit far-fetched.”
Sort of like…. oh I don’t know… William Rehnquist?
WOW
June 30th, 2010
2:26 pm
“Seems everything in the AJC gets around to the race-card.”
That’s because racists like Tucker and HDB are here to remind us that the GOP is and will always be racist…..
HDB
June 30th, 2010
2:26 pm
Jose
June 30th, 2010
2:14 pm
HDP is right about “everything has a race base to it in this country”. Example: NAACP, United Negro College Fund, BET, Miss Black America, Black History Month. The list goes on but, HDP is correct.
NAACP: Co-founded by black and white people to address the racial inequities in the nation – a conservative approach
UNCF: Founded to address funding for academic progress – a conservative and free-market solution
BET: Created to address the lack of black entertainment on television – another conservative and free-market approach. Bought by VIACOM so that a large communications conglomerate has access to a growing market
Miss Black America: Founded to address the fact that black women had not been chosen as representatives to the Miss America Pageant….another conservative/free-market approach
Black History Month: Created by Carter G. Woodson to address the fact of black accomplishment and black involvement in this nation’s history
HCBU’s: Created to educate the growing black population because they were historically denied admission to schools of higher learning….another conservative/free-market approach…..
Black Church: Founded to allow black people places to worship since they were denied access to white churches….another conservative approach……
Much of what you rail against are black AND conservative answers to racial inequity in this nation…..
WOW
June 30th, 2010
2:27 pm
“Sort of like…. oh I don’t know… William Rehnquist?”
Or, “oh..uh..yeah, that is my handwriting on that document that I wrote….” – E Kagan he/she
Mr. Holmes
June 30th, 2010
2:29 pm
WOW: Stay on point, son. We’re talking about judicial experience. I know you can do it. Lay off the Adderall for a few minutes and focus.
WOW
June 30th, 2010
2:29 pm
HDB
I’m not sure if you went to college or not, don’t really care, but dude, seriously, if you can’t see your own prejudices towards white people then there really is no hope for you.
Everything you write is about race. Geez man, get a clue.
HDB
June 30th, 2010
2:30 pm
WOW
June 30th, 2010
2:24 pm
“What Obama did to get out the black vote in 2008″
He didn’t do anything. Blacks always vote black.
OK….so prior to 2008…all white people voted for a white man to be President; is THAT considered to be racist??
WOW
June 30th, 2010
2:26 pm
“Seems everything in the AJC gets around to the race-card.”
That’s because racists like Tucker and HDB are here to remind us that the GOP is and will always be racist…..
1) I’m not racist….
2) It’s made evident by people like Jeff Sessions…..
3) It’s not racist to point it out…but it IS racist to DENY that it doesn’t exist……
4) Don’t hate the players….hate the GAME……and that’s just the historical game that Americans are constantly playing……
WOW
June 30th, 2010
2:31 pm
“tay on point, son. We’re talking about judicial experience.”
Yeah, and Kagan doesn’t have any…..
How is that not on topic?
“Lay off the Adderall for a few minutes and focus.”
Left wingers always talk about drugs. Hmmmmmmmmmm
BW
June 30th, 2010
2:31 pm
“He didn’t do anything. Blacks always vote black.”
@ WOW…apparently they also vote the Democratic ticket…and the next time you wonder why some may throw the label of racist at you, please consider how this statement would sound if spoken aloud.
WOW
June 30th, 2010
2:31 pm
“OK….so prior to 2008…all white people voted for a white man to be President; is THAT considered to be racist??”
According to Tucker, Clinton was the first black president. So………..
WOW
June 30th, 2010
2:32 pm
“and the next time you wonder why some may throw the label of racist at you, please consider how this statement would sound if spoken aloud.”
I was quoting Maynard Jackson and Al Sharpton.
Thanks for playing!
WOW
June 30th, 2010
2:33 pm
“1) I’m not racist….”
Yet you always point fingers and rail on white people……………yep, no racism there.
Jefferson
June 30th, 2010
2:33 pm
BTW, Johah Goldburg is sho’ nuff full of crap.
HDB
June 30th, 2010
2:33 pm
WOW
June 30th, 2010
2:29 pm
HDB
I’m not sure if you went to college or not, don’t really care, but dude, seriously, if you can’t see your own prejudices towards white people then there really is no hope for you.
Everything you write is about race. Geez man, get a clue.
1) College educated w/ advanced degrees………….
2) Not prejudiced….but a student AND liver of history….I’m calling it as I’ve lived it!!
3) Too many people are trying to MARGINALIZE others’ experiences….I try to learn from their experiences and expand my own….
4) Those who forget history are DOOMED to repeat it…and history IS repeating itself…….
WOW
June 30th, 2010
2:34 pm
“Johah Goldburg is sho’ nuff full of crap.”
Why are you Anti-Semitic?
WOW
June 30th, 2010
2:34 pm
“Those who forget history are DOOMED to repeat it…and history IS repeating itself…….”
Yep, and right now we’re reliving the Jimmy Carter years.
Jose
June 30th, 2010
2:35 pm
HDP, you spin everything and I mean everything into “white consrvatives hate black people”. You are the reverend wright of the ajc blogs. Simply put, you do not hold the intillegence to carry on a debate without calling some craker a racist. The good news is you make a lot of people feel real good about themselves.
WOW
June 30th, 2010
2:35 pm
“I’m calling it as I’ve lived it!!”
That explains why you can’t provide solid historical documents about Reagan etc… You’re posting your own opinion and calling it history.
WOW
June 30th, 2010
2:36 pm
“1) College educated w/ advanced degrees………….”
Like they say, D’s get degrees……….
HDB
June 30th, 2010
2:36 pm
WOW
June 30th, 2010
2:33 pm
“1) I’m not racist….”
Yet you always point fingers and rail on white people……………yep, no racism there.
Is is racist to point out what has occurred in history…..or since hit dogs holler, have you been hit??
Jose
June 30th, 2010
2:36 pm
HDP is right again, history is repeating itself. We are back to the Carter years only this idiot is worse. Good call HDP.
NJF
June 30th, 2010
2:37 pm
Jose:
It’s fine that he’s giving his opinion. People who willingly share their opinions should also be willing to be challenged on them (as you have just illustrated with your response to my post).
I’m not sure how many Republican presidents’ court nominations have been filibustered. I’m willing to venture a guess that it’s probably about the same number/proportion of Democrat presidents’ nominations.
Do you really want to go into the whole name calling thing? That kind of goes both ways don’t you think?
BW
June 30th, 2010
2:37 pm
@ WOW…do you believe that “conservatives” can get elected in sufficient numbers to control both Houses of Congress and the Presidency? If elected, do you believe that they will not be corrupted by the corporate lobbyist machine that has corrupted everyone else in Congress?
NJF
June 30th, 2010
2:39 pm
WOW:
I didn’t realize that GAs financial standing was all that great? I don’t think Mississippi, Alabama, Florida, S.C. are setting the world on fire either…
BADA BING
June 30th, 2010
2:41 pm
WOW, don’t mess with HDB, he speaks 7 languages, but doesn’t understand anything in all 7 of them.
WOW
June 30th, 2010
2:41 pm
“Is is racist to point out what has occurred in history…..or since hit dogs holler, have you been hit??”
You do it on a daily basis. When someone talks about the same topic day in and day out………..
tscali
June 30th, 2010
2:42 pm
@ bw & mr. holmes, i’m a conservative whose focus is on the fiscal only. social issues are of no great import to me. obama’s fiscal policies are a disaster. both he and bush lost my approval with tarp and the bailouts. too big to fail, my ass. the freedom to fail inspires us to succeed.
HDB
June 30th, 2010
2:42 pm
Jose
June 30th, 2010
2:35 pm
HDP, you spin everything and I mean everything into “white consrvatives hate black people”. You are the reverend wright of the ajc blogs. Simply put, you do not hold the intillegence to carry on a debate without calling some craker a racist. The good news is you make a lot of people feel real good about themselves.
One — I’ve not used the word “cracker”….that’s YOUR word. You’ve shown yourself…..
Two – you have not experienced what I have…therefore, you can’t envision my experiences…..
WOW
June 30th, 2010
2:35 pm
“I’m calling it as I’ve lived it!!”
That explains why you can’t provide solid historical documents about Reagan etc… You’re posting your own opinion and calling it history.
I HAVE….from noted sources that you wish to refute…..and your personal experiences ARE your history…just as mine are….and they hold true for you just as it does me………..
BTW…no school I’ve even attended allow persons with a D average to graduate……and to graduate from gradschool..a MINIMUM of a 3.0 must be attained…..
Try again!!
WOW
June 30th, 2010
2:43 pm
“do you believe that “conservatives” can get elected in sufficient numbers to control both Houses of Congress and the Presidency?”
Yep, if they run conservative campaigns, vote conservatively and stay on topic.
“If elected, do you believe that they will not be corrupted by the corporate lobbyist machine that has corrupted everyone else in Congress?”
Do you work for a company? If so, you’re corrupt.
WOW
June 30th, 2010
2:44 pm
“I don’t think Mississippi, Alabama, Florida, S.C. are setting the world on fire either…”
No, but none of those states are on the verge of bankruptcy.
Mr. Holmes
June 30th, 2010
2:44 pm
All this debate has revealed a pertinent question:
Are WOW, BADA BING and Jose all the same guy living in their parents’ basement, or are the three different guys living in their parents’ basements?
BADA BING
June 30th, 2010
2:44 pm
Someone wants to filibuster Kagan? Thats not legal in most states. CA will let you though.
WOW
June 30th, 2010
2:45 pm
BADA BING
Yeah, and HDB is also a doctor but doesn’t know what a suture is. LOL
Dr. Stan--(The Black One)
June 30th, 2010
2:45 pm
Wow, you really put your foot in your mouth on that one. No one hates black people but there is a problem. The problem is that integrationist black leaders and their black minions in the media etc have, by hook and by crook, educated black people to hate themselves in exchange for that mean, old mean, mean green.
For the love of money, integrationist black leaders will steal from their mothers. For the love of money, integrationist will betray their brothers. For the love of money, people can’t even walk the street. Integrationist never know who in the world they’re going to beat, for that lean, mean, mean green; that almighty dollar.
You know the story.
WOW
June 30th, 2010
2:46 pm
“Are WOW, BADA BING and Jose all the same guy living in their parents’ basement, or are the three different guys living in their parents’ basements?”
Do you always steal your insults from people you think are one person?
BADA BING
June 30th, 2010
2:46 pm
Et tu, Mr. Holmes?
WOW
June 30th, 2010
2:47 pm
“Wow, you really put your foot in your mouth on that one.”
What one?
WOW
June 30th, 2010
2:47 pm
Mr. Holmes is a paranoid person.
Real American
June 30th, 2010
2:47 pm
Just say its because you love states rights Kyle and get it over with.
BW
June 30th, 2010
2:47 pm
@ WOW…the answer to the second question implies that the conservative Congress won’t do what is necessary to get things under control. I wish either side would stop pretending that they are ever going to do what is necessary to get the fiscal house in order. Defense and entitlements are sacrosanct and no politician is dumb enough to touch those and have his political career intact afterward. Until a majority of Americans figure out what they are willing to do without, then we are having the argument just to have the argument.
Open post to the party(s) of NO
June 30th, 2010
2:47 pm
What comes around, goes around. The republicans are saying no to everything in hopes of stalling until they have the majority in the House and Senate. Once they have control, democrats will return the favor. Partisan politics is going to be nothing but a memory. So the democrats will do the same when they are the minority.
Who loses? We do. Continuous stalemates have no winners. Stop the madness.
BADA BING
June 30th, 2010
2:49 pm
That is quite ironic, you’re name is Holmes, but you haven’t GOT A CLUE! Someone explain that joke to the liberals.
HDB
June 30th, 2010
2:49 pm
BADA BING
June 30th, 2010
2:41 pm
WOW, don’t mess with HDB, he speaks 7 languages, but doesn’t understand anything in all 7 of them.
I understand more than you think……….
WOW
June 30th, 2010
2:41 pm
“Is is racist to point out what has occurred in history…..or since hit dogs holler, have you been hit??”
You do it on a daily basis. When someone talks about the same topic day in and day out………..
Many complex occurrances in life can be traced…and reduced to simple, singular events. That’s how one analyzes….and tries to SOLVE a problem. You can’t solve anything unless one ADMITS that a problem exists……..there are a myriad of problems that exist…but too many people won’t break things down to determine a COMMON DENOMINATOR…..or in math..the GREATEST COMMON FACTOR. One common factor IS race…..and in the US…it IS the greatest common factor…..
Jose
June 30th, 2010
2:49 pm
Mr. Holmes, I have a family, own my own home and have a very nice job. And you?
WOW
June 30th, 2010
2:49 pm
“Until a majority of Americans figure out what they are willing to do without, then we are having the argument just to have the argument.”
That’s why the Tea Party exists. Independents, conservatives and hungover democrat voters are sick of the establishment politicians.
People like Mccain, Spector, Dodd, Fwank etc all have to go.