The Corner

An Excluded Middle on Kagan

Byron York writes: “There’s an intense debate going on behind the scenes among Republicans involved in the Elena Kagan Supreme Court nomination. It’s about whether the GOP should to 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.” There’s another option: Make the case against liberal jurisprudence and vote against Kagan while knowing it won’t stop her confirmation. In my view, that’s what Republicans should do.

York continues,

“What Miguel [Estrada] and Ken [Starr] are trying to demonstrate is that the president deserves to have his nominees confirmed as long as they are qualified,” says one GOP Senate aide. “The problem is the Democrats don’t do that, and so you unilaterally disarm.” . . .

[S]ome leading Democrats have for years worked to establish a new, openly ideological standard for judicial confirmations. In 2001, Sen. Charles Schumer, one of Kagan’s top supporters, held a hearing titled, “Should Ideology Matter?” His position was (and is) that senators should reject qualified nominees simply because of their views on issues. Schumer would like to put an end to the idea that the Senate owes the president confirmation of qualified nominees.

The Schumer Standard versus the Starr Standard — that is the key to the debate going on among Senate Republicans. If the GOP chooses Starr and Democrats choose Schumer, that would indeed amount to unilateral Republican disarmament.

The real reason Republicans should reject the Starr Standard is not that it represents unilateral disarmament against the Democrats. It’s that it represents unilateral disarmament against rule by judges. The power that judges can now wield makes it essential that senators vote against nominees who will grab too much. That does not mean that nominees’ policy views should matter to senators. But their views about the proper role of judges must matter. On this point, Schumer was simply correct.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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