With Kagan, What Will Republicans Do?

Now that President Obama has named U.S. Solicitor General Elena Kagan as his nominee to replace Justice John Paul Stevens at the Supreme Court, one question must be answered: What will Republicans do? 

One of the most disappointing things during the nomination of Sonia Sotomayor was those nine Republican senators who voted for her confirmation: Lamar Alexander (R.-Tenn.), Christopher Bond (R.-Mo.), Susan Collins (R.-Maine), Judd Gregg (R.-N.H.), Richard Lugar (R.-Ind.), Mel Martinez (R.-Fla.), Olympia Snowe (R.-Maine), George Voinovich (R.-Ohio), and Lindsey Graham (R-S.C.).

Though we hold every senator—Republican or Democrat—to the same standard, in recent years the GOP has taken the lead to stand against judicial activism and for the Constitution. The GOP platform calls for the President to nominate judges who will “respect the Constitution.” In a section titled, “Appointing Constitutionalist Judges for the Nation’s Courts,” the platform states:

“Judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public. … Republicans will insist on the appointment of constitutionalist judges, men and women who will not distort our founding documents to deny the people’s right to self-government, sanction federal powers that violate our liberties, or inject foreign law into American jurisprudence.”

“We oppose stealth nominations to the federal bench, and especially to the Supreme Court, whose lack of a clear and distinguished record leaves doubt about their respect for the Constitution or their intellectual fortitude. Nominees must have a record of fidelity to the U.S. Constitution and the rule of law.”

Sen. Jeff Sessions (R.-Ala.) has been perhaps the finest proponent of that philosophy in the Senate and a great hero for those who love and respect the Constitution.

Based on the Republican platform then, no Republican senator should have voted for Sonia Sotomayor last year. Though Justice Sotomayor said all the right things at the hearings, there can be no doubt that her record left doubts about her “fidelity to the Constitution.” Remember the “wise Latina comments” and her belief that “policy is made at the appellate level?”

Nevertheless, several Republican senators chose to ignore the constitutional standard and their duty to “advise and consent,” to continue to hide behind the tired old saying that “elections have consequences.”

Most disappointing of all was Sen. Graham, the only Republican on the Senate Judiciary Committee who voted for Sotomayor, who used the “elections have consequences” line to try to explain his illogical reasons for supporting her. Here is just a taste of Sen. Graham at the hearings:

“Your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. Now, that’s a pretty extreme thing to say. …

“Your organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities. …

“Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group, in my opinion, than the Puerto Rican Defense Legal Fund [sic] when it came to advocacy. …

“My point is, I’m not going to hold it against you.”

And he continued saying things like: “This is mostly about liberal and conservative politics more than it is anything else,” and, “Now, unless you have a complete meltdown, you’re going to get confirmed.”

There is no use for this type of rhetoric in evaluating a candidate for the Supreme Court. It is true that the President plays a major role on the nomination process, but so do senators. If elections have consequences, the people who voted for Republican senators want them to stand by their principles and fight for their beliefs.

The nomination of Elena Kagan presents a new opportunity for meaningful debate. Of the nine senators who voted for Sotomayor, four of them also voted for Kagan as solicitor general (Collins, Gregg, Lugar and Snowe). I hope this time they explore her record in light of their own party’s platform. If they do so, I believe the outcome might be different.

Sen. Graham actually did not vote on Kagan’s nomination for Solicitor General. So to rectify this, I guess, he released a statement this time saying he has been “generally pleased with her job performance as Solicitor General.”

Well, here we go again.