Why not filibuster Kagan?

 

Why is the GOP leadership so skittish about filibustering Kagan? Why not — with all honesty — denounce Kagan as “outside the mainstream” — which will nicely reinforce Americans’ growing suspicion that Obama is way, way outside the mainstream. Kagan can hardly complain since she’s on the record as calling for a searching examination of the ideology of court nominees. She may still prevail, but I don’t see the downside.

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  1. Profile Photo Editor
    @RobLong

    But don’t you need something to really hang it on, Adam? Don’t you need some really way-out belief or statement to wrap around her nomination? Otherwise, it really would seem like a waste of time, no?

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  2. Profile Photo Member
    @

    It’s OK Adam. I know this pique is just misplaced grief over the passing of Senator Byrd. It’s OK to cry… just let it go, let it all out.

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    @FreedomGames

    Why filibuster? She probably won’t be a super effective justice on the liberal wing of the bench anyway, certainly no Stevens.

    Mediocrity seems to be her defining factor, and if anything she seems less liberal than Stevens. It’s a shame that we are putting these types of people on the courts, but I really don’t see the upside of fighting so hard to block her. Any other choice for that spot will likely be more damaging to the court – and to Republicans.

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    @NickStuart

    Filibuster on general principles. The Dems will when the situation is reversed.

    The GOP should act like it’s got a pair. That will gratify a few people and astonish everyone else.

    • #4
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    @DavidJMadeira

    Use the Filibuster to make the case that she is way out of the mainstream. And don’t tell me that we aren’t really losing anything because we are just replacing one lib with another.

    1. You don’t win by playing defense

    2. While we won on the Second Amendment today, we lost big time on the first – http://www.lifesitenews.com/ldn/2010/jun/10062806.html

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  6. Profile Photo Editor
    @RobLong

    Adam, of course I’d get a lot of deep satisfaction out of a filibuster, but we all know how it ends: she gets through and sits on the bench. So why — in the run up to the midterms, when there’s so much to pin on Obama and the Democrats — allow anything anything to derail the national conversation from the miserable economy, a failed stimulus package, rudderless foreign policy, soaring unemployment, and a massive debt?

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    @AdamFreedman

    Rob: Why? The first reason is, to quote David above, you don’t win by playing defense. Let’s never forget Bork. The Dems didn’t just roll over and say, “hey, here’s a respected jurist, let’s not go crazy.” Instead they went crazy. Of course, I’m not suggesting anything so despicable as Kennedy’s “Robert Bork’s America” speech, but there are enough data points out there to show that Kagan would be a far-left, activist judge. And that scares independent voters.

    The second reason is because a filibuster would amuse me.

    Christopher’s point is valid — they might end up replacing her with somebody more effective. But it’s unlikely. The administration will keep looking for people with no paper trail, and the more they flail about the better, tactically speaking.

    • #7
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    @UrsulaHennessey

    I’m certainly not up on the best and most effective political strategies, but I don’t get that line of reasoning that goes: “They acted like jerks and wasted our time and money a million times over, so, gosh darn it, we’re going to do it too!!!” I would respect the Republicans more if they backed off. Perhaps they could then say, “Look, we didn’t love Kagan, but we weren’t going to fritter time away battling her when our country is falling apart.” I think that could win some serious points. Maybe I’m too optimistic that the high road will win out. I believe we need to focus people’s attention on Obama and the Democrats’ poor responses to the financial crisis, the Gulf spill, and the international goings-on. Keep it simple. Avoid wasting time and money. Isn’t that the conservative way?

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    @AdamFreedman

    Ursula, I take your point and it is certainly important that we don’t come across as jerks. If I really thought that giving Kagan a free pass was the high road, then I would be for it, even if the Democrats didn’t reciprocate. But I say the high road is to engage Kagan on her record (scanty as it is) and oppose her on policy, philosophy, and experience. Remember, Kagan is 50, appears to be in good health, and could easily serve on the Court for the next 40 years. She will be shaping the law in all sorts of profound ways long after the Gulf spill is a distant memory. I don’t think there is a higher priority than shining the spotlight on Obama’s agenda of creating a far left, activist judiciary.

    But then, I am a lawyer.

    • #9
  10. Profile Photo Contributor
    @UrsulaHennessey
    Adam Freedman:

    • Zero experience on the bench. Undistinguished academic career. Virtually no time actually practicing law.
    • Banned the military from Harvard Law, pretty much knowingly defying federal law.
    • As the WSJ reported this morning, she the most expansive interpretation of the congressional power possible — having criticized even modest attempts to put limits on the Commerce Clause
    • Not just “pro choice,” but even opposed to the partial-birth abortion ban.

    ยท Jun 28 at 12:52pm

    Perhaps you are correct, Adam. I suppose I don’t trust the Republicans to keep it simple and hammer home these four points (all horrifying), clearly and succinctly, so that *these points* are what people take away from the hearings. If that could happen, then maybe I could get behind it …

    • #10
  11. Profile Photo Editor
    @Claire

    Any thoughts on this?

    My instincts are entirely with Rob’s and Ursula’s initial ones. This is just too grim a moment. We’re all seriously debating whether we’re entering a depression, and the chances of a major, regional war in my part of the world are real. Irrespective of her qualifications, there’s probably not enough votes to make it work. The replacement candidate could be a lot worse. Congress has more important things to be focusing on right now. Doing it to show that “We’re not playing defense” is not a good enough reason for the waste of time–it would be a real diversion, not just a political diversion.

    • #11
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    @AdamFreedman

    Apologies for the delay….

    Rob: I think there’s plenty to merit a filibuster. It’s all a matter of making your case. For starters:

    • Zero experience on the bench. Undistinguished academic career. Virtually no time actually practicing law.
    • Banned the military from Harvard Law, pretty much knowingly defying federal law.
    • As the WSJ reported this morning, she the most expansive interpretation of the congressional power possible — having criticized even modest attempts to put limits on the Commerce Clause
    • Not just “pro choice,” but even opposed to the partial-birth abortion ban.

    And to Trace: damn you! How did you know?

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  13. Profile Photo Contributor
    @AdamFreedman

    Claire, I’m not persuaded by Eva Rodriquez’s article. Yes, Kagan has defended certain parts of the war on terror, but not because she arrived at those positions herself but because, as solicitor general, she is required to represent the President’s views. The more revealing positions are the ones that I allude to above: she choose to denigrate the military, expand congressional power, and defend partial-birth abortions. That’s the direction she wants to take the court.

    • #13
  14. Profile Photo Contributor
    @JohnYoo

    I had a different take, but a some outcome, as James. Here’s the piece in the Philadelphia Inquirer that made the case, before Kagan was even nominated. Why not filibuster Kagan not because of Kagan, but because of the way that the Democrats have ruined the judicial confirmation process? It all started with Bork, then Thomas, then the unprecedented use of a filibuster to block even lower court nominees under Bush. The Republicans could filibuster Kagan not to oppose Kagan, but as a way to restore sanity to the confirmation process — unless Democrats commit to no more filibusters, or to an end to the character assassination of Republican nominees, Republicans will use the same tactics. By forswearing such political tactics, the Republicans are engaging in unilateral disarmament.

    • #14

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