Senator Jon Kyl used his opening statement to unleash a torrent of criticisms against Kagan. He belittled her experience, making the accurate point that other SCOTUS nominees without judicial experience have had “actual” legal experience, as contrasted with Kagan’s two years doing document review at a big law firm. He questioned her choice of judicial heroes, Aharon Barak and Thurgood Marshall, and accused her of embracing their activist philosophies. And he accused her of being precisely the sort of rubber stamp Obama was seeking for his domestic-policy agenda. I hope the MSM was watching. It seems to me that the White House has successfully convinced them that this nomination has created little traction for Republicans and Kagan opponents — that Kagan has successfully flown under the radar — because the Washingon Post hasn’t had a daily item about some Macaca moment. But that’s hard to square with the facts. As recent polls have shown, support for Kagan has dropped since her announcement. How do they explain that? Or how do they explain Senator Kyl’s aggressive opening statement — bearing in mind that he has been a proponent of deference to presidential prerogatives? Whether Kagan’s boosters in the press like it, Kagan’s decision to kick the military off the Harvard Law School campus has received widespread notice. The fact that she has no judicial experience and mostly political experience has penetrated. And the argument that she could be Obama’s rubber stamp makes sense to the ordinary person. Does that mean her nomination will be rejected? Of course not. But this is not a moment of triumph for White House spinmeisters — their candidate would lose an election. It is impossible to listen to statements by Senators Hatch and Kyl, for instance, and not conclude that it is only because the deck is stacked 58 (for now) to 41 that Kagan has a prayer.
– Gary Marx is executive director of the Judicial Crisis Network.