Promising not to filibuster a Supreme Court nomination is tantamount, in many cases, to acknowledging that the nomination will pass.
So why, if the Republicans have already pledged not to block a vote by the full Senate on President Obama’s appointment of Elena Kagan to the Supreme Court, are they grilling her so thoroughly in confirmation hearings this week?
The answer is simple: the midterms.
As they made plain in their opening statements Monday, Republican leaders intend to make Kagan’s hearings less about Kagan herself than about the president who appointed her, and about the direction of the Supreme Court under his administration. Republican strategists have calculated that such a debate could help reinforce the predominant themes of the upcoming midterm elections: public spending and the size and scope of the federal government.
Obama’s appointment of Kagan was designed in part to avoid a potentially divisive ideological battle over the issues that have come to define the court in recent years, primarily social issues and the First and Second Amendments. Without much of a paper trail or any judicial experience, Kagan arrived for her first day of hearings a relatively clean slate, thwarting any attempts by Republicans to spar over old wedge issues such as gun rights or abortion.
But Kagan’s nondescript background has left her confirmation process open to a more freewheeling debate over the broader direction of the court, and over Obama’s attempts to shape it. And as legal scholars have noted, that sort of debate typically plays to Republican strengths. In a statistical analysis of past confirmation hearings published this week, Professors Lori Ringhand and Paul Collins wrote, “Republican senators seem to have developed a type of issue ownership with regard to questions pertaining to judicial philosophy, statutory interpretation and national defense.”
Republicans will likely seek to strengthen their ownership of those issues in the Kagan hearings, attempting to turn the proceedings into a referendum on the broader political and judicial philosophies of the Obama administration. In his opening remarks, Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, charted Kagan’s career path through the legal elite, from law clerk to dean of the Harvard Law School to counsel in the Clinton White House.
“Throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country,” Sessions said.
He then sought to portray Kagan’s nomination as the latest in a series of attempts by the Obama administration and by Democratic leaders in Congress to expand the role of the federal government, over the strenuous objections of the American people.
“In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power,” Sessions said. “President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their ‘broader vision of what America should be.’ He suggests that his nominee shares that view.”
Sen. Jon Kyl of Arizona also criticized President Obama’s “empathy standard” for judges, a standard that Kyl said would force judges to “ignore the serious constitutional questions surrounding his domestic legislation,” or to use the courts to “advance ‘progressive’ goals that have been stalled in the political process.”
“Whatever the president’s motivation, his view of the role of judges is wrong,” Kyl added. “Part of our task is to determine whether Ms. Kagan shares President Obama’s results-oriented philosophy of judging, or, instead is committed to impartiality.”
In her own opening remarks on Monday, Kagan sought to blunt the Republican criticisms of her judicial philosophy, arguing that the Supreme Court must “recognize the limits” of its authority.
“The Supreme Court is a wondrous institution,” Kagan said. “But the time I spent in the other branches of government remind me that it must also be a modest one — properly deferential to the decisions of the American people and their elected representatives.”
The Republican strategy of tying Kagan’s nomination to Obama’s domestic agenda is designed rather explicitly to keep the focus of the midterm elections, which start in earnest over the summer, on the unprecedented expansion of government in areas such as health care and financial services.
But by focusing so narrowly on those issues, Republicans may well be conceding the central premise of Kagan’s confirmation hearings: to determine whether she is qualified to serve on the nation’s highest court. Like his Republican colleagues, Sen. Lindsey Graham warned Kagan in his opening remarks that he would seek to “better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge.”
“That, to me, is your challenge,” Graham added.
Almost as an afterthought, he conceded that the debate over Kagan’s credentials would be less contentious. “At the end of the day, I think the qualification test will be met,” Graham said. “Whether or not activism can be parked is up to you.”