The Senate has confirmed Elena Kagan. The vote was 63-37. Five Republicans joined every Democrat except Ben Nelson to vote “yes.” The five Republicans were, as expected, Senators Snowe, Collins, Graham, Gregg, and Lugar.
The “no” vote tally was pretty high — up from 31 in Sotomayor’s case — but there’s really no way for conservatives to put a positive spin on Kagan’s confirmation.
To get a sense of what it means, think of the three big constitutional decisions rendered by district courts in the past week or two. They are: (1) Judge Bolton’s grant of a preliminary injunction blocking key portions of Arizona’s immigration enforcement law, (2) Judge Hudson’s ruling permitting the Commonwealth of Virginia to proceed with its lawsuit challenging the portion of Obamacare that requires individuals to purchase insurance, and (3) Judge Walker’s outrageous ruling that California’s Proposition 8, which bans gay marriage, is unconstitutional.
If these matters reach the Supreme Court, as seems likely, I have no doubt that Kagan will side with those who challenge the Arizona immigration law and Proposition 8, and with the government in the case of Virginia’s challenge to Obama care. But that’s just the tip of the iceberg — probably less than one year’s worth of bad jurisprudence. Kagan is only 50 years old, so we can expect at least 25 years of the same sort of leftist assault on our traditional freedoms and the rights of our states.
The only way Kagan’s confirmation doesn’t become a disaster is if we are able to elect Republicans presidents pretty consistently during the next 22 years or so, starting in 2012, and thus can keep Kagan busy writing dissents.
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