Conservatives Have Reservations About Kagan Nomination
After a week of questioning, conservatives and even some liberals, including Senators Arlen Specter (D-PA), and Joe Lieberman (I-CT), have reservations about Elena Kagan. Among them are her penchant for international law, which she says should be referenced in Supreme Court decisions; her lack of judicial experience; her unwillingness to discuss pertinent legal issues; and her belief that the Court is a political institution. Elena Kagan is the most avowedly liberal nominee since Justice Thurgood Marshall. In the coming weeks, conservatives must do everything in their power to make known Kagan’s views on international law, abortion, the Court’s role in politics, and judicial activism. Kagan could become just the 12th nominee in history and the first since Robert Bork to be rejected by the U.S. Senate.
In recent years, confirmation hearings have become highly-politicized events and have often been laden with contention and controversy. Confirmation hearings are typified by the tenacity with which Senators question the nominee and the deference taken by the nominee on controversial issues like abortion, same-sex marriage, and gun rights. Recently, Supreme Court nominees have created a tradition of refusing to answer questions pertaining to the aforementioned issues. Further, since the Bork confirmation hearings, senators from both parties usually try to denigrate the character and record of nominees. The two most infamous examples since 1987 are the confirmation hearings of Clarence Thomas, in which Senators Joe Biden and Patrick Leahy revealed allegations that Thomas made unwanted sexual advances toward a subordinate, and the 2009 confirmation hearings of Sonia Sotomayor, in which conservatives lambasted her about a comment she had made about the advantages of being a wise Latina woman.
Unlike the two aforementioned examples, Elena Kagan’s confirmation hearings were concluded without the revelation of any such major controversy. Now that the confirmation hearings have ended, Kagan will have to convince the Senate and the American people that her credentials are appropriate and that her views are within the mainstream. Of the two, the latter will be much more difficult and may ultimately lead to her demise.
The mainstream media mainly contend that Kagan will easily get confirmed by the Senate next month and will take her place on the Court when its new term begins in October. This ignores a myriad of important factors currently surrounding Kagan’s confirmation. First, 60 votes are needed to prevent a filibuster and guarantee a nomination. Currently, the Democrats only have 58 members in the Senate after the death of Robert Byrd, the long-time senator from West Virginia. Further, in an interview earlier this week, Senator Specter told reporters that he is considering voting against Kagan, due mainly to her unwillingness to answer any questions on substantive legal issues. Specter was the only Democrat to vote against Kagan’s earlier nomination for Solicitor General. Senate Majority Leader Harry Reid and Judiciary Committee Chairman Patrick Leahy are laboring to persuade Specter to change his mind and support Elena Kagan. If Specter votes against the nomination, it is possible that she will fail to be confirmed.
The second major issue neglected by the mainstream media is that it is an election year. Many of the leading Democratic senators up for reelection in 2010 come from Republican-leaning states. Several senators in particular, such as Blanche Lincoln (D-AR), Michael Bennett (D-CO), Harry Reid (D-NV), and Russ Feingold (D-WI), all find themselves in tough reelection battles in Republican-leaning states. In each of these elections, a vote in support of Elena Kagan could harm their bids for reelection. Currently, all except Feingold are losing to their Republican challenger in polls. Politically, it would be inconvenient for these Democrats to vote in favor of confirming Elena Kagan.
Third, the mainstream media fails to discuss the public’s vexation with President Obama and his left-wing agenda. Many in the American electorate correctly assume that if confirmed, Elena Kagan would vote in favor of the Obama agenda and support left-wing causes. The Kagan nomination differs from that of Sotomayor partly because President Obama is no longer as popular. Kagan’s confirmation is far from assured. In fact, there is a considerable chance that she will be rejected by the Senate next month.
Conservatives have reservations about the Kagan nomination due to her views on a myriad of issues, ranging from abortion to judicial precedent. During her tenure as the Dean of Harvard Law School, Solicitor General Kagan banned U.S. Army recruiters from the law school, citing as a reason that they were indoctrinating students with violent and hateful messages. Furthermore, Kagan contends that international law should be used when deciding U.S. Supreme Court cases because it is more favorable to minorities and oppressed citizens than U.S. law. Lastly, conservatives are beguiled with Kagan’s conviction that the Constitution is a “living document.” Kagan’s extreme views on these three issues, plus other extreme views on gun ownership, stare decisis, due process, and constitutional rights for non-citizens, make her a poor choice for the Court. Senators should take her views on the Court’s role in the American political system into consideration when deciding whether or not to support her nomination.
In the weeks ahead, the American media and the political community will be fixated on the Kagan nomination and whether or not Majority Leader Reid can muster up enough voters to ensure her confirmation. If the vote were taken today, it appears that the Senate would fall two or three votes short of confirmation. With opposition to the liberal agenda and the Obama presidency mounting, it appears that the confirmation of Elena Kagan to the Supreme Court is going to be more difficult than initially anticipated. Kagan’s unwillingness to answer the myriad of legal questions posed to her by members of the Senate Judiciary committee leaves the fate of her confirmation in jeopardy. If she stays mute on these issues, the American electorate will understand that she is simply an advocate of President Obama’s far-left agenda, and her nomination will be defeated. The Kagan nomination could play a prime role in transforming the Court from an institution rightly grounded in the Constitution’s original intent to one that is wrongly dominated by judicial activism and international law.
The National section of the Weekly Political Forecast is written by PAI’s Political Analyst.
