Nathan over at A Few Thoughts deplores the game-playing with the federal courts and explains the rules:
- Identify rising legal stars in the opposite political or judicial camp.
- When a president nominates these rising legal starts to “pipeline” positions that could lead to a seat on the Supreme Court, fight their nominations with every substantive complaint and procedural maneuver you can manage. (The public doesn’t pay much attention to this round of the game, so if you want to defeat nominees that would be hard to oppose in the attention-grabbing Supreme Court nomination round, this is your chance. Be sure to oppose the nominations of women and racial minorities with zeal.)
- Don’t let your guard down when you defeat one nomination; you can’t let anyone through. That way, the president will be forced to nominate someone you like (or at least one you like better than the nominee you defeated).
He opposes the Republicans who oppose Harvard Law School dean Elena Kagan, who was blocked from the federal bench in 1999. But now that Kagan is up for Solicitor General, she has a duty to answer questions about what she’ll argue in court. Courtesy of the WSJ’s Political Diary (sorry, no link) here’s a summary of her testimony [emphasis added]:
The Senate Judiciary Committee is scheduled to vote today for President Obama’s nomination of Elena Kagan to become the Justice Department’s new Solicitor General. The dean of Harvard Law School is expected to be confirmed, but her refusal to answer questions is setting a bad precedent.
Supreme Court nominees have in recent years declined to answer many questions on grounds that their answers could jeopardize impartiality in future cases. The exemption has not extended to executive branch nominees, however, whose policy opinions and judgments are a relevant part of their qualifications.
That could change if Ms. Kagan’s antics are allowed to stand. Seventeen times in response to Senate questions on topics including legal policy regarding gays in the military, enemy combatants and the Second Amendment, Ms. Kagan declined to give her views. Why? She claimed either she had a special duty to the Court or that she did not wish to prejudice future decisions from the Solicitor General’s office.
Well, Well. That’s a major departure from other executive branch nominees, including two Bush-era solicitors general, Ted Olson and Paul Clement, who answered questions at their hearings on controversial issues, from ROTC on campus to detainee treatment.
Ms. Kagan’s real motive for staying mute has been a subject of speculation. She may wish to avoid going on record with anything that could complicate her own potential nomination to the Supreme Court. If so, perhaps she shouldn’t have accepted Mr. Obama’s nomination to the SG’s office. The Senate confirmation process exists to provide oversight and give voters often their only chance to learn about the people who will govern in their name. The Solicitor General is not an empty vessel but the top legal advocate for the United States.
Republican Senators roll over for Democratic nominees in ways that Democratic Senators do not for Republican nominees; this is why Orrin Hatch, long time ranking Republican on the Judiciary committee, was the subject of an irritated but truthful aphorism: “Don’t count on Hatch till he’s chickened.” The problem is that if one side is throwing punches and its opponent is not, the side throwing punches has no motivation to stop. Republicans need to do unto their political enemies as their enemies do unto them.
For example, the Democrats were obsessed with using sex scandals (or the implication of them) to bring down Republicans like Bob Packwood and Clarence Thomas. It took Bill Clinton’s sexcapades to get Democrats to back off that tool. If Republicans want to end the game, they need to stop complaining about the rules and win the silly thing.
Posted by Hubbard in Politics, We're all DOOMED