Legal Commentary

Attempts to Defeat the Kagan Nomination, and Political Hardball

By Eugene Volokh

My post quoting the Miguel Estrada letter in support of the Elena Kagan nomination led some commenters to disagree: Conservatives should play hardball against the Kagan nomination, they argued, and not be duped by misguided appeals to deference to Presidential choices, or by praise for Kagan?s intellect or temperament or other nonideological credentials. (Jim Prevor, writing in the Weekly Standard, seems to suggest a similar approach, but comes out somewhat differently in the end; I?m not sure that what I have to say here squarely responds to him.)

But while political hardball may sometimes be fair ? much depends on exactly what sort of hardball is contemplated ? there?s a separate question: Is it likely to work, in the sense of accomplishing the hardballers? goals? And it seems to me that any serious conservative campaign to try to block Kagan is unlikely to work. Instead, conservatives should use the nomination hearings as a platform for doing something much more productive.

Kagan seems likely to get nearly all the Democrats? votes; and while the Democrats? majority isn?t filibuster-proof, the Republicans in the early 2000s pretty firmly condemned filibusters of Supreme Court nominees, at least nominees that have majority support. The criticism extended to filibusters of judicial nominees generally, but it certainly applied to Supreme Court nominees as well. 

What?s more, the Roberts and Alito nominations were in fact not blocked by the Democrats, because enough Democrats refused to go along with the filibuster. Indeed, then-Sen. Obama was willing to filibuster Alito. But the fact remains that enough Democrats ultimately acceded to the Republican arguments against filibustering Alito. If Republicans use a filibuster to block Kagan, despite their anti-filibuster arguments of the last decade, and despite their success in getting Roberts and Alito through, I suspect, that this will look very bad for them ? and will hurt them in November.

And, beyond that, while it?s not clear exactly how liberal Kagan will be, it?s hard to see why Republicans should think that the next nominee will be materially less liberal. Maybe Merrick Garland would be, or so I?ve heard some say; but I doubt this would be so as to Diane Wood or Sidney Thomas. So blocking Kagan through a filibuster would mean a political cost ? possibly a substantial cost, in a very important election ? and with fairly little political again.

It seems to me that the sensible thing for Republicans to do is to use the Kagan nomination as a means of persuading the public that the Republicans? vision of the Constitution is sounder than the Obama Administration?s vision of the Constitution. The lack of concrete evidence about Kagan?s personal views on various issues would help that, by leading people to associate her more with the Obama Administration?s views, and more broadly with the views of liberal Democrats. 

So the Republicans could talk about (say) gun rights, the use of foreign law, same-sex marriage, the use of religious symbolism in government speech, and so on ? not with an eye towards to defeating Kagan in the Summer, but to defeating the Democrats in November. That, I think, is a strategy that might actually succeed, and might actually help advance conservative political and legal ideals.

Full post as published by The Volokh Conspiracy on May 17, 2010 (boomark / email).