It’s awfully early to speculate about how Senate Republicans should vote on the Kagan nomination and whether they should attempt a filubuster. The focus now should be on attempting to learn as much as possible about the nominee, a task made more difficult than it should be thanks to what appears to be the small volume of her relevant writing.
Looking ahead, there may be two possible grounds for voting not to confirm. The first would be that Kagan is not qualified for the Supreme Court. Weak qualfications constitute a valid basis for a “no” vote, in my view. Indeed, assessing qualifications has been the traditional role of the Senate in the judicial confirmation process.
Depending on the standard one applies, Kagan’s lack of judging experience and substantial real world legal experience, coupled with the apparent absence of major legal scholarship, might support a conclusion that she is not sufficiently well-qualified to serve on the nation’s highest court. As Ed Whelan says, “Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.”
My guess is that, when all is said and done, reasonable Republican Senators will be able to conclude either that Kagan is minimally qualified or that she is not. Based on my knowledge of the current record, I tend to believe that Kagan possesses the minimum qualifications needed for the job.
The second possible ground for voting against Kagan is that she would be too liberal a Justice. Traditionally, idelogical disagreement was not considered a good ground for voting against qualified Supreme Court nominees. But the Democrats over-turned that tradition through their voting pattern during the Roberts and (especially) the Alito confirmation process. This gives Republican Senators every right to vote against nominees based on ideological considerations. There should not be two sets of rules for confirming Supreme Court nominees.
Kagan is almost certainly a hard-core liberal. That’s how those who know her best describe her, and everything I’ve heard about her supports this conclusion. The fact that she treated conservatives well at Harvard is commendable, but it says nothing about how she will decide cases. Indeed, although she has spoken kindly of the Federalist Society, Kagan has made it clear that they “are not her people.”
If seems quite likely that Republican Senators will vote against Kagan in large numbers based on her perceived liberalism. 31 of them voted against her nomination for Solicitor General, an executive branch post for which the president’s choice is likely to receive particular deference.
A filibuster is another matter, though. To the extent Kagan’s qualifications prove to be suspect, the proper response is a vote by the Senate to assess this issue — not obstruction. To the extent conservatives consider Kagan’s ideology too liberal, the proper response, again, is a vote by our elected representatives.
If there’s a prevailing standard on filibustering judicial nominees, it is that there must be “extraordinary circumstances.” I see none at this point. If that remains the case after the nominee is rigorously scrutinized, then Republican Senators should not filibuster.
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