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Bench Memos

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As the Senate Unleashes Kagan on America, Five Lessons Learned



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1. This 63–37 vote was a victory for judicial conservatives. No one expected her to be defeated, but no one expected her to receive 37 no votes, either. Sotomayor’s vote last summer was 68–31.

2. The climate regarding judicial nominations has been radically altered. There is now a significant political price to pay for nominating people who fail to respect the Constitution or who do not have a record of judicial restraint. One need look no further than the opposition statements to Kagan from GOP Senate candidates around the country. Even some Senate candidates who had been for Sotomayor just last year joined the large and loud chorus of those on the campaign trail who understood the dangers of supporting Kagan. If Republicans pick up a half dozen seats in November, which is very possible, President Obama will be looking at a totally different set of possibilities should Justice Ginsburg or another Supreme retire.

3. Major interest groups that traditionally have not played a role in Supreme Court battles are moving toward the side of judicial restraint as the radical results of liberal judicial activism continue to mount. Case in point: For the first time since they began reviewing Supreme Court nominees, the Chamber of Commerce refused to endorse one. Furthermore, the NRA engaged in unprecedented opposition, solidifying their new role in Supreme Court battles since opposing Sotomayor just a year ago.

4. There were some surprising no votes. Retiring senators like Kit Bond and George Voinovich, who supported Sotomayor a year ago, were joined by a senator from a deep-blue state, Scott Brown — all voted in a way that did not match their political self interest. Principled opposition based on a plethora of well-reasoned points carved through the simplistic rhetoric that the politicized Democratic majority employed about how Kagan is a nice woman with a good sense of humor who was able to make lots of friends in places like D.C., New York, and Cambridge.

5. Ultimately, the Kagan debate was about the size and role of the national government, and the role of judges within that government. That’s exactly what it should be about, and Kagan walks away clearly branded as a rubber stamp for the Obama administration’s agenda.



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