There is not one chance in a thousand that they will do it, of course. But Senate Republicans can do much good for the country, the political culture, and, in the long term, themselves, if they would undertake a courageous, principled and ethical act: confirming Elena Kagan to the Supreme Court, after establishing her qualifications to serve, by an overwhelming if not unanimous vote.
Kagan is qualified. No less than a Conservative icon than Justice Scalia has endorsed the concept of putting a non-judge on the Supreme Court, and for a non-judge, Kagan is as qualified as any reasonable person could want. She was a Supreme Court justice’s clerk (Thurgood Marshall), meaning that she has already participated in the writing of Supreme Court opinions. As Solicitor General, Kagan has prepared briefs for and argued dozens of Supreme Court cases. She has had a long and successful career in the law; she is obviously up to the task intellectually. Though some of her opponents will disingenuously argue otherwise, there can be no legitimate argument (if one accepts that a non-judge can be qualified for the job) that Kagan isn’t up to the job.
The Republicans plan to challenge her, rather, on the basis of her ideology and likely leftward tilt, and subject her to the hostile inquisitional questioning and antagonistic speeches that has characterized Senate confirmation hearings of Justices since 1987, when Democrats, led by the late Sen. Ted Kennedy, denigrated the character and misrepresented the judicial positions of Reagan nominee Robert Bork and sent his nomination to defeat on the basis of ideology alone. The hearings featured one of the most outrageous instances of political slander in U.S. history, when Kennedy thundered that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy…” Virtually all those who argued before Bork as a judge or who worked with him regarded his as a spectacularly adept legal mind and a scrupulously fair judge who was not only well-qualified, but a good bet to become one of the most influential and powerful voices in the history of the Court. Under the standards of review that had been in place through the middle of the 20th Century, this would have guaranteed Bork’s confirmation with minimum opposition. During the tumultuous times of the 1960’s, however, liberals on the Senate began establishing a new approach to nominations in order to protect the progressive legacy of the ground-breaking Warren Court, which de-segregated the schools, protected the rights of the accused, elevated the First Amendment, and partitioned Church and State as never before. Starting with the nominees of President Johnson, Supreme Court confirmation hearings began to be less about qualifications and more about politics. The Bork hearings escalated the ideological warfare to toxic levels, and Bork became the last nominee to answer the questioning of the Senators fully and honestly, realizing too late that it wasn’t the quality of his legal reasoning and scholarship that mattered to them, but his conclusions.
Since Bork’s defeat, the confirmation hearings have become show trials. The nominees are faced from the start with no-win options of honestly responding to questions and getting “Borked” as a result, or lying, thereby failing to uphold the very integrity and honesty that is required of a judge. The tenor of the hearings have contributed to the toxic hyper-partisanship of Washington that has made the government increasingly dysfunctional, as Democrats and Republicans alike have sought to “give it to them like they gave it to us,” and used the hearings to grandstand to their most extreme supporters. Senate Republicans are expected to attack Kagan on the basis of a politically-charged decision she made as Dean of Harvard Law School that, truth be told, has very little relevance to her qualifications for the Supreme Court, and the positions she took as Solicitor General, which is just legally ignorant: a lawyer represents the views of her client, which are not necessarily her own.
The Senate is not giving up its Constitutional function to “advise and consent” if it simply establishes that a nominee is qualified and has nothing in her past that indicate that they are corrupt, bigoted, or otherwise untrustworthy. Presidents will obviously appoint the justices who they feel are philosophically sympathetic with their own views; that should not be the basis for challenging the legitimacy of nominees. Political hit jobs, like Anita Hill’s despicable ambush of Clarence Thomas with old and unprovable allegations of sexual harassment, should be deplored and condemned, and each political party should display respect and deference to the choice of the other party’s President, knowing that their own chance will come, and that their President’s choice will be treated with due respect too.
The Senate Republicans can lay the foundation of such a process, the way it used to be, and forfiet nothing but the cheers of the Angry Right. Kagan is going to be confirmed. Forcing her to obfuscate, attacking her character, and voting against her in droves will only ensure that a vicious cycle continues and, it should be mentioned, will reduce any potential she might have to be sympathetic to Republican arguments after she joins the Court. Confirming Kagan as an explicit demonstration of respect for her and President Obama’s—or any President’s—right to choose whatever qualified candidate he wants can help moderate the unhealthy ideological warfare in America that is generating only discord, deadlock and chaos.
A strong Republican vote for Elena Kagan would be a vote for mutual respect, cooperation, open-mindedness, civility, compromise and fairness. It’s the right thing to do. It is obviously the right thing to do.
What does it say about our government that there is absolutely no chance it will happen?