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
Jose
June 30th, 2010
4:53 pm
Ok Mark V, what has he done? I mean correctly done.
MarkV
June 30th, 2010
4:57 pm
JoseL “Correctly” is meaningless. You probablly mean what he dd what you think was “correct,” right? In other words, when somebody does things YOU do not think are “correct,” he or she did “nothing,” right? .
WOW
June 30th, 2010
5:01 pm
“You are a liar. Byrd did not hang anybody.”
Yeah, keep telling yourself that!
“Why do you have such a penchant for being wrong? ”
Funny, you never pointed out anything that I said that was wrong.
WOW
June 30th, 2010
5:02 pm
“Is this an entry for the most stupid comment of the year?’
Ok, so what has he done?
Stimulus failed, we’re still in two wars, three if you count the Gulf of Mexico, Gitmo is still opened, Iran has nukes and democrats are losing seats left and right.
So, tell me what he’s done right.
Just SAY IT!
June 30th, 2010
5:03 pm
Kagan may be smart, but her opening remarks sounded like code for “gay rights” and gay marriage. All her talk about “equal rights for all people”–she said that many times. Right now, the primary people barking about not having “equal rights” are those in the homosexual community who wish to marry. I say the woman is in the closet. Just come out; be yourself. And let Oprah and Gayle join in the announcement.
WOW
June 30th, 2010
5:03 pm
“Byrd did not hang anybody.”
Unless you attended his Klan meetings, you would not know that.
WOW
June 30th, 2010
5:04 pm
“JoseL “Correctly” is meaningless. You probablly mean what he dd what you think was “correct,” right? In other words, when somebody does things YOU do not think are “correct,” he or she did “nothing,” right? .”
Code word for: Mark V doesn’t have a clue.
MarkV
June 30th, 2010
5:08 pm
MarkV: “Byrd did not hang anybody.”
WOW: “Unless you attended his Klan meetings, you would not know that.”
You are the one who claimed he did. Did you know it because you attended?
MarkV
June 30th, 2010
5:10 pm
WOW: “Code word for: Mark V doesn’t have a clue.”
A little problem of comprehedning an argument?.
JDW
June 30th, 2010
5:11 pm
Atta boy Kyle just keep on promoting that Ol’ Republican Obstructionism. The President, of either party, has the right to make appointments that are consistent with his or her principles. That is what you win by winning elections. This idea that the minority can block appointments just because they don’t like the politics of an appointee is ludicrous. Of course you don’t like Kagan’s politics she is a Democrat, but unless you can come up with a material reason she should not serve then sit down and shut up!
red
June 30th, 2010
5:12 pm
He’s better then Bush, but that ain’t saying much, anywho missed 420 gonna double down at 840, God bless…
MarkV
June 30th, 2010
5:13 pm
WOW: Stimulus failed in your imagination. Two wars, Gitmo and Iran – same as under Bush.
WOW
June 30th, 2010
5:16 pm
For anyone who wants to see PREDATORS, here is a cool clip from the new movie.
http://www.youtube.com/watch?v=4ecPa0yGCxk&feature=player_embedded
WOW
June 30th, 2010
5:17 pm
“You are the one who claimed he did. Did you know it because you attended?”
No, if I wanted to attend a klan rally I would go to the DNC.
WOW
June 30th, 2010
5:18 pm
“A little problem of comprehedning an argument?.”
The only thing I have trouble comprehending is your poor spelling.
WOW
June 30th, 2010
5:19 pm
“Stimulus failed in your imagination. Two wars, Gitmo and Iran – same as under Bush.”
Unemployment is 10%. It was 8% under Bush in his last month in office.
Obama said he’d get us out of Iraq and close Gitmo. Guess what dim wit, we’re still there and Gitmo is still opened.
WOW
June 30th, 2010
5:20 pm
“He’s better then Bush”
Bush had approval ratings above 50% for 6 years. Obama’s approval rating is 42% and he hasn’t been in office for 2 years.
redneck
June 30th, 2010
5:22 pm
Wow, You’ve been blogging since 1 pmish, must suck to be you. My guess is the only friends you have are the pimples on your fat-ass…..
WOW
June 30th, 2010
5:23 pm
“but unless you can come up with a material reason she should not serve then sit down and shut up!”
She has no experience, much like her commie pal Obama. I love it when retarded left wingers tell other bloggers to shut up all while typing their threats in their inbred parents trailer.
WOW
June 30th, 2010
5:25 pm
“You’ve been blogging since 1 pmish, must suck to be you.”
Yeah, that’s because I have time, ma’am. No, actually it’s great to be me. I get to sit here and make fun of troglodytes like you.
“My guess is the only friends you have are the pimples on your fat-ass…..”
Hey, that’s no way to talk about your wife!
Reason why Kagan should be fillibustered
June 30th, 2010
5:34 pm
Kagan in her own words.
KAGAN: Senator, with respect I — I — I don’t think that that’s what happened, uh, here.
HATCH: I’m happy to have you clarify. That’s my question. Did you write that memo?
KAGAN: I’m sorry, the memo which is…?
HATCH: The memo that basically caused them to go back to the language of “medically necessary,” that was the big issue to begin with.
KAGAN: Yes. Well, I’ve seen the document and the document is –
HATCH: But did you write it?
KAGAN: — is certainly –
HATCH: Is that your memo?
KAGAN: The document is certainly in my handwriting.
Democrat voters=Retardation
June 30th, 2010
5:37 pm
Russian Spies disguised themselves as journalists and college professors. Hmmmmm, makes so much sense.
Curiosities Emerge About Suspected Russian Agents
They seemed so normal, buying houses in the suburbs, walking their children to the bus stop in the morning, bringing home flowers in the evening, telling the neighbors they worked in trendy industries like financial services. But the Justice Department says that they were deep-cover spies from Russia and that their mission was to infiltrate American “policymaking circles.”
http://www.nytimes.com/2010/06/30/nyregion/30suspects.html
"Information becomes a distraction, a diversion, a form of entertainment" - BHO, May 1, 2010
June 30th, 2010
5:40 pm
Under Kagan’s definition of the government’s role in policing free speech, the state would have a remit to censor things like newspaper editorials, as well as the political opinions of radio talk show hosts or television reporters. This is alarming given the fact that Obama’s information technology czar Cass Sunstein has called for the re-introduction of the “fairness doctrine,” which would also force political websites to carry mandatory government propaganda.
Obama’s Supreme Court nominee also thinks certain expressions of free speech should be ‘disappeared’ if the government deems them to be offensive. On the surface that’s any opinion on racial, sexuality or gender issues, but since criticizing Obama is now deemed racist, where will it all end?
In a 1993 University of Chicago Law review article, Kagan wrote, “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.”
In a 1996 paper, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.
Kagan’s standpoint on free speech, that it is subject to regulation and definition by the government, has no place in America, completely violates the fundamental premise of the First Amendment, that even unpopular speech should be protected, and would be better suited for countries like Iran, Zimbabwe or North Korea.
Little surprise therefore when we learn that in her undergraduate thesis at Princeton, Kagan lamented the decline of socialism in the U.S. as “sad” for those who still hope to “change America.”
If Kagan is approved she is going to find an eager ally in White House information czar Cass Sunstein, who in a January 2008 white paper entitled “Conspiracy Theories,” called for the government to tax and outright censor political viewpoints it deemed unsavory.
HELL NO !
Scott
June 30th, 2010
5:47 pm
Everyone should take this for what it is OPINION not fact. Kyle is by nature right wing. Thats why he writes HIS OPINION for the AJC (he is there right wing replacement for whats his name). If you are looking for only cold hard facts…this is not the place you should be looking
Scott
June 30th, 2010
5:47 pm
Sorry “their replacement”…
"Information becomes a distraction, a diversion, a form of entertainment" - BHO, May 1, 2010
June 30th, 2010
5:50 pm
Dear Scott – HuffingtonPost sounds like a reliable and unbiased news source…….
Scott
June 30th, 2010
5:51 pm
Oh…she will be confirmed, she will lean left just as GWB’s lean right. Its all about who is president when a replacement comes up…as long as they are qualified which Kagen most certainly is. It doesn’t matter what her opinion is, and Sen.Sessions of all people should know that after he was denied confirmation to the bench himself for that very reason.
Democrat voters=Retardation
June 30th, 2010
5:52 pm
“HuffingtonPost sounds like a reliable and unbiased news source…….:
Yeah, that and Daily Kos, Media Matters and PMSNBC. Funny thing about the Kos is that the Kos got taken for a ride. Dumb @ss left wingers.
Scott
June 30th, 2010
5:52 pm
Blah blah blah…if flaming is all you got fine…
Democrat voters=Retardation
June 30th, 2010
5:53 pm
“Blah blah blah…if flaming is all you got fine…”
Speaking of flaming, isn’t Kagan………..
Paulo 977
June 30th, 2010
6:19 pm
cj @1:34pm … Well done …case laid out simply and coherently . But then some just don’t seem to get ‘coherently’ do they?
Cutty
June 30th, 2010
6:24 pm
“So, why should Kagan now pay for the sins of Sotomayor and others?”
Because a democratic President nominated them.
Three words: Roberts and Alito
MarkV
June 30th, 2010
6:30 pm
WOW: If you have trouble comprehending poor spelling, it shows that your knowledge of English badly needs improvement.
Ragnar Danneskjöld
June 30th, 2010
6:31 pm
Dear HDB @ 12:59, a thoughtful conservative understands that the Plessy court “read” things into the Constitution, things they believed were in a penumbra but not actually in words; “separate, but equal” does not appeal anywhere in the Constitution. The Brown court corrected the activist ruling of the past, by saying that when the Congress grants “equality” anything other than full “equality” is illegal. The perversity is that had the Southern Democrats truly provided “equal” facilities – prior to Brown – for the “second class citizens” they might have been able to keep their vaunted separateness. The Plessy requirements were mere words to the local autocrats. The overlords have always used the guns of government to effect their prejudices, and still do.
MarkV
June 30th, 2010
6:32 pm
“Unemployment is 10%. It was 8% under Bush in his last month in office. ”
And rising. You are suprised that it went further up? Talking about dimwit!
MarkV
June 30th, 2010
6:35 pm
WOW: “Obama said he’d get us out of Iraq and close Gitmo. Guess what dim wit, we’re still there and Gitmo is still opened.”
No mention of who got us into Iraq, and who opened Gitmo for the present use?
MarkV
June 30th, 2010
6:38 pm
WOW: “No, if I wanted to attend a klan rally I would go to the DNC.”
In other words, you made a stupid accusation, and now you do not know how to respond with anything except another stupidity.
saywhat?
June 30th, 2010
6:41 pm
Kyle, the idea to filibuster Kagan’s nomination is a blatantly bad one, for the reasons enumerated by one of your more intelligent posters, Joe @ 3:02. Also, as stated by many posters, elections have consequences, and political appointments is one of them.
I actually would like to see Kagan’s nomination defeated and/or withdrawn. While she appears to be a social liberal, Kagan seems to be much too corporatist for my tastes, (as was Sotomayor). I would love for Obama to nominate a real progressive judge, but it doesn’t appear that this will happen, ever. Conservatives on whole should not be complaining re: Obama’s Supreme Court nominations, who are far more centrist than any nominated by GWB. The court has swung so far right the last 30+ years, with right wing judges replaced by judges even further right, and left wing judges replaced by judges closer to the center. Even if Obama had the chance to replace one of the 5 justices in all those recent 5-4 decisions, the movement to the left would still be far less than the move right caused by the initial appointment.
@ HDB. Give up. You are only feeding the trolls. Comment on the topic at hand and ignore the idiotic rantings of the willfully ignorant. Every time you respond to their infantile garbage, you encourage them to post more of it, meaning I have to scroll past it to get to something worth reading. You are obviously a thoughtful and intelligent poster. Don’t waste that thought and intelligence answering questions and challenges that others put no thought or intelligence into making.
WOW
June 30th, 2010
6:43 pm
“If you have trouble comprehending poor spelling, it shows that your knowledge of English badly needs improvement.”
How, you’re the one misspelling simple words, retard.
WOW
June 30th, 2010
6:44 pm
“You are suprised that it went further up?”
Nope, and again, you misspell another simple word. It’s spelled, surprised, not suprised. Dumb @ss.
WOW
June 30th, 2010
6:45 pm
“No mention of who got us into Iraq, and who opened Gitmo for the present use?”
Yeah, democrats and republicans. Both sides signed on to the war. As far as Gitmo goes, Obama said he was going to close it down in his first year.
We’re now in year 2 and it’s still open.
"Information becomes a distraction, a diversion, a form of entertainment" - BHO, May 1, 2010
June 30th, 2010
6:45 pm
The Progressives have refused to address my assertions regarding nominee Kagan.
Typical.
Kagan does not support free speech. In fact she believes Government can censor political and unsavory speech.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” — 1st Amendment to The Constitution of The United States of America. Ratified on December 15, 1791
Progressives use it when it’s convenient for their cause but will deny it to those they disagree with.
Karl Marx taught them this.
WOW
June 30th, 2010
6:46 pm
“In other words, you made a stupid accusation, and now you do not know how to respond with anything except another stupidity.”
You don’t get sarcasm do you, Muck V?
Go back to playing with your dolls.
WOW
June 30th, 2010
6:48 pm
“Three words: Roberts and Alito”
As Joe Biden once said, “Roberts gave the best answers of any nominee that I have ever seen.”
MarkV
June 30th, 2010
6:48 pm
WOW: Go back to playing with yourself.
WOW
June 30th, 2010
6:49 pm
“The Progressives have refused to address my assertions regarding nominee Kagan.”
What do you expect? Left wingers get their degrees in pottery making and philosophy. They don’t know how to address real questions.
Typical left wing answer: Bush did it!
WOW
June 30th, 2010
6:49 pm
“Go back to playing with yourself.”
Is that the best comeback you can think of, Carrot Top?
WOW
June 30th, 2010
6:50 pm
“WOW: Go back to playing with yourself.”
Nice, great retort to a slew of rebuttals from me. You’re special ed teacher must be proud of you.
Gerald West
June 30th, 2010
6:52 pm
This is a new low for you, Kyle! First, you defend the filibuster, a political contrivance to block the actions of the representatives elected by the vast majority of Americans. Second, you suggest that justices of the Supreme Court should be selected according to their political views on contemporary issues rather than their knowledge, courage, and determination to defend our Constitutional rights.
The “conservative” charlatans in Congress are interested in a single issue: restricting the abortion rights of women. Kagan will dance around the issue, and so will her questioners. She’ll never be nominated if she promises to uphold the liberty of all Americans, including pregnant women and gay men.
Liberty is the reason for the existence of the Constitution, as stated in the opening paragraph of the document. Liberty means the right to each person to conduct his life as he sees fit, whether the majority approve or not, so long as he does not encroach on the rights of others.
WOW
June 30th, 2010
6:55 pm
“First, you defend the filibuster, a political contrivance to block the actions of the representatives elected by the vast majority of Americans.”
You must have been angry when Democrats did it to Republicans a few years ago. If not, you’re a typical left wing hypocrite.
“including pregnant women and gay men.”
So is she a gay man or woman?
“so long as he does not encroach on the rights of others.”
?????