Tuesday, August 3, 2010

Kagan Floor Debate

You know what's really silly?  Senators who complain that the Judiciary Committee hearings on Supreme Court nominees are content-free -- when the main thing that's content-free is their own speeches.  Actually, the worst of the lot are the opening statements by Senators during committee hearings, but the floor statements today were quite impressively useless, too.  I listened to a handful (there will be many more this afternoon, but I think I've had enough). 

Anyway, the one I found really striking was Senator Jon Kyl's speech in opposition.  Now, it wasn't the most fun, really; for me that would be Senator Jeff Sessions' implication that one good reason to vote against Kagan was that she was from Manhattan's Upper West Side (it was in the context of guns, and no, he didn't spell out exactly what he meant by that, but it wasn't really necessary -- of course, her, uh, cultural background is also the strongest evidence most of her supporters are leaning on in trusting that she will be what they want on the Court).  Anyway, my guess is that Kyl may have some very strong quotations sitting around from 2001-2008 in which he unambiguously claimed that opposing a nominee on ideological grounds was wrong.  Why do I think that?  His speech was framed around the idea that Kagan must be opposed because she lied (although he stopped short of using that word) to the Judiciary Committee.  Now, it turns out that what she lied about is her radical liberal agenda...Kyl went over each of the Republican charges against her, noted that she denied them all, repeated the "evidence" for them, and concluded that she was deliberately disingenuous with the committee.  As if he would have been glad to support her if only she had admitted to her rapid hostility to the military, her deep and abiding hatred of guns and gun owners, and her insistence that foreign law trumps American law at all times.  Or something like that. 

The whole thing, of course, is silly.  Both sides pretend that what they care about is judicial philosophy, when what they really care about are results.  Solid partisans on both sides pretend that they will oppose nominees only if they're extremists, but in fact solid partisans are pretty much going to oppose anyone that the other party's president nominates (although actual voting decisions when confirmation is in doubt may be strategic).  And both sides are weighed down by previous statements when the partisan context is different about the legitimate grounds (and methods) for opposing nominees.

What's more interesting is the potential train wreck ahead if Republicans reduce or eliminate the Democratic majority in the Senate and still choose a rejectionist strategy.  We really would be in new territory if there are 41 or more Senators determined to vote against any judicial nominee the President sends up.  That may not happen; Republicans may choose to negotiate for moderate nominees, and then let them be confirmed.  But if it does, it surely will make for interesting times.

2 comments:

  1. typo(clever)"rapid hostility to the military"; or rabid.

    "Solid partisans on both sides pretend that they will oppose nominees only if they're extremists, but in fact solid partisans are pretty much going to oppose anyone that the other party's president nominates (although actual voting decisions when confirmation is in doubt may be strategic)."
    You make it sounds as if this was a longstanding practice and not a post Bork phenomena/aberration.

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  2. More like post Fortas. Between the two, you had some easy confirmations like Scalia and Stevens, and Reagan pretty wisely used history to get O'Connor through, but Nixon had plenty of his own troubles (and ended up not even getting the guys he thought he got), and there were plenty of these "near-party line" votes that we've seen for Sotomayor and Kagan.

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