President Obama has selected his Solicitor General, former dean of the Harvard Law School Elena Kagan, to succeed retiring Associate Justice John Paul Stevens on the U.S. Supreme Court. She is knowledgeable, witty, charming, and showed a strong willingness to accommodate ideological purity during her tenure at Harvard, hiring several conservative law professors. None of which will win her any confirmation votes from Republicans in the Senate. Those senators will vote against ANY Obama nomination for one reason and one reason alone: it is OBAMA'S nomination. Still, now that very conservative Utah Senator Robert Bennett has been thwarted in his attempt to run for a fourth term this year by extreme elements of his own party, he, like retiring Ohio Senator George Voinovich (who supported Sotomayor for the Court), may be liberated from the pressure exerted by stonewalling Senate Minority Leader Mitch McConnell to join in an almost certain filibuster attempt to prevent Kagan's nomination from even reaching the Senate floor for an up-down vote. But should a GOP filibuster appear to be succeeding, I would recommend that the Democrats put into effect what then-Majority Leader, Republican Bill Frist had threatened to do a few years ago: Change the Senate rules on nominations to bypass the 60 vote threshold to defeat filibusters (the so-called "Nuclear Option"). Before the Democrats showed the will to pass health care reform through the reconciliation process a few weeks ago, I would have discounted this option. But now that they have finally shown a willingness to have a backbone and stand up to the minority party, I expect them to at least make a gesture in this direction should they lack those 60 votes.
Kagan seems like a great choice to me, although I would have preferred Diane Wood. Well, maybe seeing two female colleagues on the bench will make ailing Justice Ruth Bader Ginsburg to feel more comfortable in retiring, secure that her replacement would be filled by someone more in line with her own judicial philosophy and temperament.
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just curious, why would you favor doing what democrats opposed so vigorously before?
ReplyDeleteIf you go back in history, the unwritten rule with presidential nominations, at least until the most recent few years, has been for the opposition party to defer to the president's decisions except under extreme conditions. The overwhelming number of George W. Bush's judicial nominations were confirmed with little Democratic opposition, but the handful that the Democrats did oppose and filibustered spurred Frist to entertain the "Nuclear Option". However, this current Republican opposition is practicing more of an obstructionist strategy designed to slow down the Democrats' legislative agenda as much as possible. We have had numerous cases where an Obama nominee was prevented for months getting an up-or-down vote, but then received many GOP votes when the final confirmation vote was eventually held. In contrast, look at how Clarence Thomas was confirmed as Associate Justice in 1991. There were no filibuster attempts preventing an up-or-down vote and he was confirmed by a final 52-48 vote. Nowadays an Obama Supreme Court appointee with such slim overall support would never be able to get past a concerted filibuster, given the very hard-line attitude that the Republicans have been recently exercising. So yes, should they try a filibuster against Kagan, the Democrats should give them a dose of their own "medicine".
ReplyDeleteAs Harry Reid likes to say, you are entitled to your opinion, you are not entitled to your own facts. You have just rewritten history, and not too accurately. There were many more than a few Bush appointees held up by Democrats, and there is a big difference between filibustering legislation, which is the appropriate use, to slow legislation down, and was used by the Democrats when they were in the minority on a regular basis and filibustering judicial nominees. Lets see, going way back there was the filibuster of Robert Bork, more recently, the filibuster of Miguel Estrada. I have done the research on judicial filibusters, since I am a retired attorney, and will be happy to share it with you if you are interested. I don't want to see either party filibuster judicial nominees. Just give them an up or down vote. I predict you won't see any attempt to filibuster Kagan, although I personally oppose her for philosophical reasons
ReplyDeleteThanks for your very thoughtful and welcome comments. I certainly don't claim to know everything and do respect your credentials and experience, although you may also be a little bit remiss in your facts. Robert Bork WAS accorded an up-down vote: he was rejected, 42 for and 58 against (not a filibuster). It's true, though (as Arlen Specter pointed out during that "Nuclear Option" crisis a few years ago while he was the GOP chair of the Judiciary Committee), that both parties have been playing a tit-for-tat game with each other regarding judicial nominees since the eighties. As for the threat of a filibuster in the present Senate for this particular nominee, I agree with you that it isn't likely; we still have some opposition senators who feel a personal duty to defer to a reasonable degree to the current elected president regarding nominations. I, too, didn't care for those judicial filibusters that the Dems kept up during Bush's presidency. But remember: when that former "Nuclear Option" threat of Senator Frist loomed near, a group of eight senators rose up and virtually guaranteed the remaining Bush nominations (by that time Estrada had withdrawn his name from consideration) a floor up-down vote. So just threatening a Nuclear Option essentially ended those remaining filibusters (and cleared the way for Bush's two Supreme Court picks as well).
ReplyDeleteAnd yes, whatever you would like to contribute now or at some future time will be greatly appreciated. Thanks again!