While many conservatives say the Democrats’ 59-to-41 advantage in the Senate guarantees confirmation of Elena Kagan to the Supreme Court, one of the most renowned experts on Senate rules and procedures says “not so.”
“Kagan can be stopped, but only if Republicans in the Senate are willing to go all the way to do this,” said New Hampshire attorney Mike Hammond, who served as general counsel to the Senate Republican Steering Committee from 1978-89.
“But that’s a big if,” Hammond said, recounting how the Senate Republican leadership did not use the parliamentary tools it had at its disposal and thus, “punted on the healthcare issue.”
Hammond, a recognized authority on the rules and by-laws of the Senate, was frequently sought out by prominent conservative senators such as the late Jesse Helms (R-N.C.) and Bill Armstrong (R.-Colo.) on how to use parliamentary procedure as a weapon on the Senate floor.
Hammond spelled out in detail to HUMAN EVENTS a six-point blueprint on how to stop Kagan:
1. Oppose Cloture on Anything—“The Way We Did in 1990”
If the 41 Senate Republicans agreed to oppose cloture (the mechanism through which filibusters can be stopped with 60 out of 100 votes in the Senate) on anything, says Hammond, “they could bring the Kagan nomination and a lot of other things to a screeching halt.”
Although this would technically override the bipartisan agreement in the Senate of the “Gang of 14” during the twilight days of the Bush Administration that no judicial nominations would be filibustered save in “extraordinary circumstances,” Hammond believes that Kagan’s background and public record easily meet the criterion of “an extraordinary circumstance.”
He recalled how in 1990, then-Senate Majority Leader George Mitchell (D.-Maine) asked Republicans if they would not object to amendments to Title X (family-health services), the Age Discrimination Act, the Motor Voter legislation, and cable reregulation legislation.
“Republicans agreed on the condition that Mitchell and the Democrats would not object to the Republicans offering one amendment—and that was extending the Independent Counsel law to Congress,” recalled Hammond. “Mitchell agreed and Republicans did not object to bringing his issues to the floor. But then he came back and said that the Democratic conference [in the Senate] would not agree to the one amendment Republicans wanted and he could not keep his earlier promise.”
Angry Republicans led by then-Sen. Bill Armstrong (R.-Colo.) agreed in the Steering Committee “that no one would ever vote for cloture on anything,” said Hammond. All of the Democratic bills were killed in that session of Congress, he said, even though Democrats controlled the Senate at that point.
Hammond said that adopting such a policy again would mean, “Let’s stop the train in the Senate until we see where it is going.” Recalling how Mitchell played rough as majority leader and “was easily a more partisan Democratic leader than Lyndon Johnson,” Hammond insisted that the same “eye-for-an-eye” tactics must be used in dealing with current Senate Democratic Leader Harry Reid (D.-Nev.).
2. End Business As Usual—“Obama is Not FDR”
In 1933, nearly all of the New Deal programs were enacted in Congress with Republican support. At one point during the “100 Days” of congressional activity following FDR’s inauguration, House Minority Leader Bertrand Snell (R.-N.Y.) quipped that if the President asked Congress to commit suicide, lawmakers might well obey his wishes.
Hammond fears that any Republican agreement on the Obama agenda “will turn Obama into FDR.” He had particularly harsh words for Sen. John Cornyn (R.-Tex.), chairman of the National Republican Campaign Committee, who recently said Republicans would "bend over backwards both in appearance and in reality to give the nominee a fair process."
“You may remember this was the same Senate leadership team that ‘bent over backwards’ on Obamacare,” said Hammond. “And Obama, Harry Reid, and Nancy Pelosi took advantage of their ‘bent-over-backwards’ position to kick them in the rear.”
Statements that signal a bipartisan approach must stop. That will send a very clear message of ending the policy of “business as usual” dealing with the White House.
3. Recognize Kagan Could Be Deciding Vote on Obamacare
Hammond believes that the constitutionality of the healthcare legislation could eventually be decided before the Supreme Court. Already, he has written a 23-page analysis of why the measure is unconstitutional. Attorneys general of several states have filed suits challenging parts of the healthcare package on constitutional grounds.
“There is a belief among liberals that if the constitutionality of the healthcare bill ever gets to the Supreme Court,” said Hammond, “a ‘Justice Kagan’ could be the deciding vote.” Although Hammond agrees that the breakdown of the current court is 5-to-4 on the conservative side, he said there is a theory in legal circles that “Kagan could intellectually persuade Justice [Anthony] Kennedy, who is the ‘swing justice’ to come over to the side upholding Obamacare.”
4. Make Solomon Amendment Opposition A Key Issue
Already, the issue of then-Harvard Law School Dean Kagan’s opposition to military recruiters on campus under the Solomon Amendment (barring tax dollars to institutions not permitting recruiters) is increasingly becoming the focal point of early opposition to the nominee. Hammond believes this should be underscored relentlessly “and particularly the part about the Supreme Court eventually upholding the Solomon Amendment by 9-0.”
5. Bring to Life Kagan’s Goldman-Sachs Connection
Reported—but to a small degree so far—is that Kagan received $10,000 in 2008 for serving as a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute. By itself, this does not put Kagan anywhere near Goldman-Sachs CEO Lloyd Blankfein, Fabrice “Fabulous Fab” Tourre, or any of the other characters who gloated while the housing market went under.
“But the Democrats are making such an issue out of any Republican ties to Goldman-Sachs,” said Hammond, “that this is fair game. If George W. Bush had nominated a candidate for the Supreme Court with similar ties, that nomination would have been deader than a doornail.” Hammond strongly maintained that the Goldman-Sachs connection of Kagan, no matter how much the media dismisses it, should be pursued and highlighted with vigor.”
6. Use Rules to the Greatest Advantage Possible
“The rules of the Senate can make Kagan very unpopular,” said Hammond. He explained that the longer a confirmation process goes on, the more opposition mounts and the more unpopular a nominee becomes. He pointed out that a single senator can object to the request for unanimous consent when the Senate goes into session and can thereby delay any Judiciary Committee confirmation hearings for the rest of the day.
“We should be encouraging Republican senators to make all possible requests that delay the hearings,” added Hammond. “It will work to the benefit of those who want to defeat the nomination.”
The late Sen. Helms once observed that when working in tandem with then-Democrat colleagues (and fellow Senate rules experts) Robert Byrd (W.Va.) and James B. Allen (Ala.), legislation and other Senate business could be stalled for more than a month.