Wednesday, May 12, 2010
Via Instapundit, Howard Fineman predicts that Elena Kagan will have a tougher time in the Senate than Sonia Sotomayor.
Based on conversations with Republican sources in the Senate, there will be no filibuster, and such an effort would almost certainly fail if the GOP tried it. Based on my current count, at least three Republicans, and maybe one or two more, will end up voting for her, and likely all of the Democrats will.Fineman's point may have entered into the political calculation or the thinking of the White House in not selecting a nominee who would have been more pleasing to the base of the Democratic Party. Sometimes, in political confirmation processes, it is better to bat leadoff.
But that doesn’t mean there won’t be a fight over her nomination.
In fact, there is going to be a nasty one; far nastier than the relatively polite treatment accorded Sonia Sotomayor last year. Here’s why:
The political situation in the country is far different — and far more likely to push Senate Republicans into confrontational mode — than it's been in recent history. President Barack Obama is much less popular than he was when Sotomayor was nominated.
In May 2009, his job-approval rating stood at 66 percent in the Gallup Poll. Now, it's barely cresting 50 percent. He never had much GOP support, and now he’s now lost most independent backing, which is one reason why Republicans are likely to make major gains in the midterms.
On the other hand, if you believe you have a lock on 59 votes for only a short while longer, why not take the small gamble on someone more doctrinaire? This is the tactical philosophy espoused by Frank Pentangeli, speaking to Michael Corleone in Godfather II, responding to Michael's assertion concerning Hyman Roth and the attempt on Michael's life: "Look, let's get 'em all -- let's get 'em all now, while we got the muscle."
CWCID: Glenn Reynolds
you righties are all daft if you don't believe she is a good choice for The Supreme Court. You all are never going to get some strict constructionist or Constitutionalist out of this president. Thank god for that, we have too many Scalias and Roberts on the court now.
I predict a great number of "I will not vote to confirm a Supreme Court Justice who has no experience whatsoever as a Judge." votes, but a confirmation that will be described by the New York Times as "Breezed through." Perhaps even one or two from Democrats in losing battles for re-election.
In the end, Obama has the votes. Kagan will be approved.
In theory, you don't have to have gone to law school or been a lawyer to be put on the Supreme Court. In theory, you don't have to be Catholic to be made Pope.
Especially with the growth of the regulatory state, most of the cases that the Supreme Court handles these days are actually over statutes and are very technical. You really have to be a legal uber-nerd to do the job. Earl Warren -- who was never a judge before Eisenhower made him Chief Justice -- would be bored to tears on today's court.
Kagan is a legal uber-nerd, and hence qualified in way that Harriet Miers wasn't. But Kagan's best qualification is that she's a friend of Obama going back to Chicago Hyde Park days.
So, the better analogy for Kagan is Abe Fortas. Fortas was "well qualified" -- but his best qualification was that he was a friend of LBJ. Fortas even had a hand in "fixing" LBJ's first time Senate win in 1948. All neutral observers believe that LBJ only won by 87 votes because of outrageous ballot stuffing. Harold Ickes was responsible for putting Fortas together with LBJ -- it all goes back to Chicago politics.
Once on the Court, Fortas got in trouble because he kept talking to LBJ -- he was LBJ's mole -- and other sins. LBJ then wanted to make Fortas Chief Justice, but it wound up with a theathened impeachment and Fortas resigning.
Obama has already co-opted the legislative process. Now he's working on the Third Branch. Can you say "separation of powers."
This is the best ground on which to attack Kagan. At a minimum, given her current work as Obama's head appellate lawyer, she should be pressed to promise to recuse herself on things like Obamacare. One SCOTUS vote could mean the difference.