Bench Memos

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The GOP’s Imaginary Dilemma on Kagan


Byron York reports that there is an “intense debate going on behind the scenes among Republicans” over “whether the GOP should try to stop Kagan, because that’s what Democrats would do in the same situation, or whether Republicans should concede that Kagan is qualified and vote to confirm her because the president has the right to expect the Senate to approve qualified nominees.” 

I’d propose a third path:  Just as Senate Republicans did on the Sotomayor nomination, they should prepare to make a vigorous case against Kagan based largely on judicial philosophy, even as they recognize that the large Democratic majority in the Senate means that there’s every reason to think that Kagan will be confirmed.  As Eugene Volokh put it yesterday,

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.… 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.

As York discusses, the alternative of voting to confirm Kagan would amount to unilateral disarmament.  That’s a strategy that has proven to be a failure:  After the Bork and Thomas confirmation fights, Republicans tried that approach when they supported the nominations of Ruth Bader Ginsburg (confirmed 96-3) and Stephen Breyer (confirmed 87-9), and it didn’t yield comparable Democratic treatment of John Roberts and Samuel Alito.  So however much some of the conservatives supporting Kagan might wish for a state of affairs in which senators of both parties base their confirmation votes narrowly on professional qualifications, it would be utter folly to imagine that support from Republican senators for Kagan would advance that goal.  Rather, as Jim Prevor argues, that approach would ensure that we “wind up with a court of well-credentialed liberals.”


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