Ed Whelan cites Byron York’s report that behind the scenes, Washington Republicans are conducting an “intense debate” over “whether the GOP should to try to stop Kagan, because that’s what Democrats would do in the same situation, or whether Republicans should concede that Kagan is qualified and vote to confirm her because the president has the right to expect the Senate to approve qualified nominees.”
If that’s really the way Washington Republicans are framing the question, it’s more evidence of their tone-deafness. As Whelan sensibly suggests, “[j]ust as Senate Republicans did on the Sotomayor nomination, they should prepare to make a vigorous case against Kagan based largely on judicial philosophy, even as they recognize that the large Democratic majority in the Senate means that there’s every reason to think that Kagan will be confirmed.”
I think that’s right: Kagan is going to be confirmed, there is no doubt about that, but Republicans should point out–vigorously–the reasons why they have reservations about her. Those who think she is unsuited for the Court by reason of ideology, temperament or inexperience should vote against her.
I would add that already, the public takes a lukewarm view of Kagan, at best. Rasmussen finds that only 39% of voters think the Senate should confirm Kagan, while an equal number say she should not be confirmed. And that must be before most of them know about her treatment of military recruiters. The fact that Kagan is lightly qualified, at best, makes the Republicans’ position that much stronger.
A clear majority of Americans agree with the Republican view of the proper role of the judiciary and favor justices of the sort conventionally described as conservative. This is a battle the Republicans should fight every time, whether they have the votes to win or not.
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