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
Roger Rabbit
June 30th, 2010
3:41 pm
Is WOW really LA/DavidAxelfraud in disguise? His bullying rantings seem familiar.
WOW
June 30th, 2010
3:42 pm
BW
Why should I ignore the polls? Democrats are ALWAYS referring to polls. In fact, Daily Kos got taken for a ride for a fake poll and now Markos Nutjob is suing the polling company.
WOW
June 30th, 2010
3:43 pm
“Is WOW really LA/DavidAxelfraud in disguise? ”
Hey Dewstarpath!
BADA BING
June 30th, 2010
3:46 pm
Hey WOW, let’s agree with all the liberals so they will LIKE US !
WOW
June 30th, 2010
3:49 pm
BADA BING
Liberals don’t like anything. Just watch Rachel Madcow or Keith Olberqueer. They are ALWAYS crying about anything and everything. I really do think left wingers want everyone to be miserable.
BW
June 30th, 2010
3:49 pm
@ WOW…I would ignore the polls because at some point this woman will have to actually conduct an interview and present the policies she would advocate…if she and Rand Paul are so confident that their ideology is a panacea for America’s problems they shouldn’t be afraid of doing interviews.
WOW
June 30th, 2010
3:50 pm
“America’s problems they shouldn’t be afraid of doing interviews.”
Interviews with who?
BW
June 30th, 2010
3:53 pm
@ WOW….let’s start with the local media…I’m not asking them to go on Olbermann, Maddow, or Matthews…how about Sheppard Smith….someone that will ask questions in a way that the candidate must fully enunciate their world view so the voters of Nevada and Kentucky actually know what they are voting for or against.
LibraryJim
June 30th, 2010
3:54 pm
The problem is that the Republicans currently serving do not have the backbone to do this. That’s why we need to vote them all out and get a new crop of true conservatives in place.
Seriously?
June 30th, 2010
3:56 pm
Most people here seem to overlook the obvious. When voting for President you are also voting for their Supreme Court picks. One of the most long term benefits of the job is to put on the bench people who have somewhat similar views. It is a privledge that every President takes advantage of (with a few exceptions for Presidents who thought the person would vote one way and ended up voting another).
The process of confirmation has been tainted by Senators voting not on whether the candidate is QUALIFIED, but on whether they happen to agree with that candidate’s opinions, so opinions are no longer given. I don’t think anyone could make a case for Myers, but despite her lack of bench experience Kagan is clearly an extremely experienced and qualified legal mind. She would not be the first Justice without bench experience. Most analysis puts her as one of the most moderate of Obama’s potential choices. The right should be pleased that he didn’t go for an extreme, though qualified, candidate. Fillibuster? Get over it unless you feel it would be right for the Democrats to fillibuster the next qualified right wing judge presented by the next Republican President.
WOW
June 30th, 2010
3:56 pm
“how about Sheppard Smith”
He doesn’t conduct interviews with candidates. The candidates we’re talking about are local candidates and should do local interviews.
“fully enunciate their world view so the voters of Nevada and Kentucky actually know what they are voting for or against.”
Worldview? They’re not running for president, BW. Hell, all Angle has to do is point to Reid and say, “Hey, look at that guy, I’m the total opposite of that clown. I believe in the free market, tight border security, less government.” Done. She wins.
BW
June 30th, 2010
3:58 pm
@ Library Jim…the problem is that “true conservatives” will never a majority just as “true liberals” never will. People had a chance to vote them out in the primaries and in 98% of the cases a majority of voters decided the status quo in their parties was just fine.
WOW
June 30th, 2010
3:59 pm
“the problem is that “true conservatives” will never a majority just as “true liberals” never will.”
Conservatism trumps liberalism any day. Hell, Obama ran a conservative campaign.
“People had a chance to vote them out in the primaries and in 98% of the cases a majority of voters decided the status quo in their parties was just fine.”
Huh?
WOW
June 30th, 2010
4:00 pm
“the problem is that “true conservatives” will never a majority just as “true liberals” never will.”
Well yeah, people in Illinois and Michigan always vote for idiotic libs who cater to unions.
Jose
June 30th, 2010
4:00 pm
Mr. Holmes, Reid would lose to a pink poodle running on the Poodles for Dictators Party. Please, be real with your leaders. Hell, I even expected and was correct, that 2006 was going to be bad for my party because of what was going on. We are WORSE off now then 2006 so a dose of reality Mr. Holmes is needed in your life.
BW
June 30th, 2010
4:00 pm
@ WOW…again we’ll see but if you believe that she doesn’t have to get the voters a reason to elect her then those voters will be as disappointed as those vaunted tea partiers who were “responsible” for Scott Brown’s victory only to find out he’s not an ideologue.
BADA BING
June 30th, 2010
4:00 pm
WOW, did you see the story about the liberal school system that was distributing condoms to 5th graders. Maybe Al Gore could show them how to use them. I think Gore was confused about Global Warming. It was probably just the warming KY jelly he was using with ‘ the ladies’.
WOW
June 30th, 2010
4:01 pm
BW
No one ever said there’d be a TOTAL conservative House or Senate. But guess what, Obama is making sure conservatism comes back. Carter ushered in Reagan. Obama will usher in someone who is conservative.
We have to be conservative because congress men and women have spent our money like drunken idiots.
WOW
June 30th, 2010
4:02 pm
“again we’ll see but if you believe that she doesn’t have to get the voters a reason to elect her then those voters will be as disappointed as those vaunted tea partiers who were “responsible” for Scott Brown’s victory only to find out he’s not an ideologue.”
She’s given the voters plenty of reason to vote for her. If not, she would not have a 7 point lead. Duh!
BW
June 30th, 2010
4:02 pm
@ WOW…I’m referring to the party primaries that have already taken place this year in many states. Most incumbents will be on the general election ticket…98% of them in fact. In regards to Mich and IL….all politics is local. I think moderation trumps conservatism and liberalism in the long run but that’s just me.
WOW
June 30th, 2010
4:03 pm
“did you see the story about the liberal school system that was distributing condoms to 5th graders.”
Yeah, and these same idiots complain when their classes are too full. Liberalism = retardation.
WOW
June 30th, 2010
4:04 pm
“I think moderation trumps conservatism and liberalism in the long run but that’s just me.”
There’s no such thing as being a moderate. People are sick of moderates because moderates get nothing accomplished.
Mccain’s a “moderate” and he got his @ss kicked in 2008. Palin was the only reason he didn’t lose all 50 states. Or as Obama calls it, 57 states.
BW
June 30th, 2010
4:05 pm
@ WOW…agreed about Congress spending but they didn’t start on Jan 20, 2009…there are structural deficit issues with our budget because all the politicians shake in their boots when it comes to altering the real spending….Social Security, Medicare, Medicaid, national defense and of course the interest payments for all the debt. Again a poll is a snapshot…she hasn’t debated Reid yet…we’ll see where the polls are after that.
WOW
June 30th, 2010
4:05 pm
“In regards to Mich and IL….all politics is local.”
That statement contradicts everything you’ve written about candidates on a national level. If politics is local, why are you calling for Angle to give an interview to Shep Smith?
WOW
June 30th, 2010
4:06 pm
“she hasn’t debated Reid yet”
There’s not a lot to debate. All she has to do is run clips of all the stupid things he’s said and done over the past few years.
BW
June 30th, 2010
4:07 pm
@ WOW….moderation got things done…not perfectly but done…now the word compromise does not exist in people’s vocabulary. McCain made it pretty clear he would be a continuation of the status quo and Obama has guaranteed that he will be in alot of respects.
WOW
June 30th, 2010
4:08 pm
“agreed about Congress spending but they didn’t start on Jan 20, 2009″
No, but since then, Obama has hit the gas peddle and driven our country over a cliff. He’s spent 10 times as much as Bush ever did. Not saying Bush didn’t spend a lot but Bush is nothing compared to the guy in the White House now.
WOW
June 30th, 2010
4:08 pm
“moderation got things done”
Like what?
“Obama has guaranteed that he will be in alot of respects.”
Obama is Woodrow Wilson on steroids.
BW
June 30th, 2010
4:10 pm
@ WOW…I was just throwing a name out to your question since you will only do a friendly crowd interview…Angle has said some interesting things herself and Reid can illuminate those things. Candidates get elected locally of course but campaign nationally in addition to locally which is why are we are talking about them now.
WOW
June 30th, 2010
4:12 pm
“Angle has said some interesting things herself ”
Like what?
BW
June 30th, 2010
4:12 pm
@ WOW…I meant Angle will only do friendly crowds…moderation has helped kept the country together…we cannot fight zero sum games and expect anything to happen…no it’s not sexy but it is necessary.
BW
June 30th, 2010
4:13 pm
@ WOW….let’s see…eliminate the EPA and Social Security, criticism of BP is un-American…I’m not weighing in on the validity of those statements but they need to be expanded upon.
WOW
June 30th, 2010
4:16 pm
“eliminate the EPA and Social Security”
SS is bankrupt.
“criticism of BP is un-American”
What has Obama and the awesome government done to help? Nothing.
“I’m not weighing in on the validity of those statements but they need to be expanded upon.”
Yeah, so does the fact that Obama has done absolutely nothing as president.
DT
June 30th, 2010
4:26 pm
HDB is throwing around a few historical inaccuracies, I assume others have picked up on. “Plessy vs. Ferguson” was an 1896 Supreme Court decision (by decidedly racist judges, of course) that ’separate but equal’ was ok regarding schools (Brown v. Board of education in 1954 reversed that decision and essentially stated that ’separate’ inherently means unequal and, therefore, schools could not continue to be segregated.
The 3/5 to which you incorrectly refer goes to the original forming of US for purposes of determining population for representative government (the House of Representatives). A slave (I believe had to be American born to be counted) counted as 3/5 of 1 for purposes of determining population in those states that had slavery. “The 3/5ths Compromise” is one of many (possibly the most important) compromises that allowed the Constitution to even be ratified (to solve the issue of slave vs. non-slave states). I believe all but the most ignorant (and racist) of people can agree that slavery is the single biggest scar in the country’s history (perhaps eradication of Indians by disease and wars is worse). So, some 80 years later there was a small war over the slavery issue as certain states said they would secede from the Union if a certain Republican (Abraham Lincoln) was elected President in 1860.
All that and I didn’t even have to go to Wikipedia (it’s about 7th-8th grade civics)
Dr. Stan--(The Black One)
June 30th, 2010
4:30 pm
BW, the description can be applied to greedy integrationist people, especially African American leaders and their minions… I’m just too busy to explain in detail…
Every human I know is rational. We have differing opinions on what constitutes being human. I’m first and foremost a God fearing person. Everything that follows is inconsequential…
It is the will of God that the world magically sorts itself out like creation or it goes the way of lost civilizations; that’s right.
I’ll talk to everybody later; God willing.
WOW
June 30th, 2010
4:30 pm
DT
You’re talking about a person who says Reagan was a racist but Robert Byrd was not.
gatorman770
June 30th, 2010
4:31 pm
I think that’s one good reason to filibuster, but another is the fact that the confirmation of “Al Capone” Kagan will give the court 3 progressive female justices, all from New York City, which is not what I call court diversity. How ’bout one of the fine female judges with actual judicial experience from the Southeast or Southwest!
MarkV
June 30th, 2010
4:35 pm
The most empty column Kyle has written in a long time. Absolutely brainless.
HDB
June 30th, 2010
4:35 pm
WOW
June 30th, 2010
4:30 pm
DT
You’re talking about a person who says Reagan was a racist but Robert Byrd was not.
Byrd asked for forgiveness; Reagan did not. Reagan supported segregation; Byrd changes and supported civil rights….
There IS a difference!! Byrd had his moments…but changed….Reagan never did!!
Gotta run…good afternoon, all……………
WOW
June 30th, 2010
4:36 pm
“The most empty column Kyle has written in a long time. Absolutely brainless.”
Well Kyle, anytime you anger an angry left winger, you’ve obviously earned your paycheck from the AJC.
Lourdes
June 30th, 2010
4:37 pm
You guys are so awesome. Who among us exited the womb with more than any other, and who will leave this ‘life’ with more than all others? Who does not enslave, or better yet… who does not bind? Am I free if I “have to” believe as you do? Am I free if you bind me to all the miles of sand that have passed beneath ‘your’ feet? If you bind me to your experience and then judge me then you are a slave master. If you bind me and then claim that I am free then you are a hypocrite.
Who here does not bind, demand, mandate, judge, deceive…?
If you do not… I am your biggest fan.
Gottab
June 30th, 2010
4:38 pm
I think WOW is manic !!! take a chill pill!!!
WOW
June 30th, 2010
4:38 pm
Byrd asked for forgiveness; Reagan did not. Reagan supported segregation; Byrd changes and supported civil rights….blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah
HDB=Broken Record
“Byrd had his moments…but changed….Reagan never did!!”
Reagan will and always will be better than any democrat. Oh, and Reagan didn’t hang black people nor call them the N word. Byrd did.
Sucks to be you.
BADA BING
June 30th, 2010
4:38 pm
With all that is going on in the country, John McCain has got to be the luckiest man alive !
WOW
June 30th, 2010
4:39 pm
“I think WOW is manic !!! take a chill pill!!!”
If I were manic, I’d be like Al Gore.
WOW
June 30th, 2010
4:40 pm
Lourdes
As a citizen of Earth, let me say, WELCOME TO EARTH!
Lourdes
June 30th, 2010
4:43 pm
WOW, Namaste my brother!
MarkV
June 30th, 2010
4:46 pm
WOW: Why do you have such a penchant for being wrong? I was not angry when I wrote that Kyle’s column was empty, just expressed my view of the waste of time and newspaper space with fluff. As for you answer to a comparison of Byrd and Reagan: You are a liar. Byrd did not hang anybody.
Dave from GT
June 30th, 2010
4:49 pm
Why are the women lawyers on FOX so much more BABES that OBAMA’s nominees. He needs to nominate a BABE!!!! It would also increase the court’s diversity.
No modesty panel at the nominee’s desk in Congress. CSPN ratings thru the roof!!
MarkV
June 30th, 2010
4:52 pm
“Yeah, so does the fact that Obama has done absolutely nothing as president.”
Is this an entry for the most stupid comment of the year?