Should conservatives oppose or not oppose the nomination of Elena Kagan to the Supreme Court?
Several prominent conservatives have taken the “confirm the liberals if they’re clean” approach to Kagan Among them is Miguel Estrada, a prominent member of the Federalist Society who was nominated to the U.S Court of Appeals for the District of Columbia Circuit by President Bush, but denied a confirmation vote by a Democratic-led filibuster in the Senate that survived seven cloture attempts). Late last Friday afternoon, Estrada sent out a “shocker.” He wrote a letter to the Senate Judiciary Committee endorsing Kagan’s nomination to the Supreme Court.
Hailing the lady he called “Elena” for her “formidable intellect” and “exemplary temperament,” Estrada warned that “[i]f such a person who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”
Were there a chance that these eloquent words from Estrada would be really taken to heart by Senate Democrats and that they would afford the same treatment to Republican judicial nominees, one could say this position on judicial nominees should be embraced.
But Senate Democratic Leader Harry Reid (Nev.) and his colleagues just aren’t going to honestly embrace his viewpoint. With all respect to Estrada, this “noble” approach has been tried before by Senate Republicans and not reciprocated on the Democratic side of the aisle.
Put simply, it won’t work.
“Two Wrongs Make a Precedent”
Even after the public savagings of Bork in 1987 and Thomas in 1991, the Republicans nonetheless offered a magnanimous hand when a Democratic President had the opportunity to name Supreme Court justices. Bill Clinton’s two nominees, Ruth Bader Ginsberg and Stephen Breyer, were both confirmed with barely a handful of GOP Senate opponents. And, to the surprise of few, both turned out to be very liberal members of the high court.
Was this approach reciprocated when Republican George Bush became President in 2000 and had a crack at naming justices? Hardly. Barely a month after Bush was inaugurated, then-Senate Democratic Leader Tom Daschle (S.D.) said in February 2001 that he and his Democratic colleagues would use “whatever means necessary” to oppose Bush nominees to the Supreme Court and other judicial nominees.
John Roberts did sail through confirmation as chief justice because of the dazzling mastery of court cases and precedents he displayed before the Judiciary Committee. He won the votes of half the Democratic senators, but Hillary Clinton (N.Y.) and Barack Obama (Ill.) were on the “no” side. In January 2006, after some rancorous hearings and debate, 25 Democrats voted to filibuster Samuel Alito’s nomination to the Supreme Court. Among those filibustering were Senators Obama, Clinton, Joe Biden (Del.), Reid, and Senate Judiciary Committee Chairman Pat Leahy (Vt.).
Every Democratic senator who served during the Bush presidency voted against cloture on judicial nominees at the level of the U.S. Court of Appeals. Almost all of these voted “no” on multiple nominees. Miguel Estrada finally asked that his nomination be pulled after it languished for years because of a filibuster.
Charles Pickering of Mississippi did the same with his own nomination to the 5th Circuit Court of Appeals, a casualty of the filibuster and malicious (and untrue) reports about his earlier handling of the race issue. U.S. District Judge Rick Griffin of Michigan finally bailed out of nomination to the 6th Circuit after Democrats denied him a vote in the full Senate for four years. More than a few old hands in the Senate believe this is because the nominee’s father, former Sen. Bob Griffin (R.-Mich.) led the successful Senate battle against Lyndon Johnson’s nomination of liberal Abe Fortas to be chief justice in 1968.
The bipartisan “Gang of 14” reached a compromise in May 2005 meant to end the filibuster of judicial nominees except in “extraordinary circumstances.” Thanks to this compromise, such distinguished Bush nominees as Janice Rogers Brown (D.C. Circuit), Bill Pryor (5th Circuit), and Priscilla Owen (5th Circuit) all got votes on the Senate floor and were finally confirmed.
But the “Gang of 14” compromise never stopped the practice of filibustering. Days after the bipartisan agreement, nearly all non-gang Democrats continued filibustering Bush nominees and voting against cloture on Pryor, Brown, and nominee Bret Kavanaugh. In fact, those filibustering former Bush White House counsel nominee Kavanaugh included Sen. Daniel K. Inouye (D.-Hawaii), a “gang” member.
Most recently, in October 2007, 35 Democrats voted to filibuster President Bush’s nomination of Leslie Southwick to the 5th Circuit. Again, the “filibusterers” included “the usual suspects”—Obama, Biden, Clinton, Reid, Leahy and Mary Landrieu (D.-La.), a “gang” member.
And these are the people Estrada and some other Republicans—albeit with the best of intentions—would give the benefit of the doubt and not fight the Kagan nomination? Does anyone truly believe they would reciprocate when a Republican President puts forth a Supreme Court nominee?
It is said that two wrongs don’t make a right. But, as late conservative author Victor Lasky once wrote, “in politics, two wrongs make a precedent.” Despite what Miguel Estrada said last week, Republicans surely can oppose the Kagan nomination and do so with vigor—and a clear conscience.