Although the reality of 59 Democratic senators meant that the confirmation of Elena Kagan was never really in doubt, believers in the rule of law have several things to cheer in the Kagan confirmation battle. Republican senators mounted their strongest opposition in more than century, sending strong signals to the White House about future Supreme Court picks, while teeing up important issues for this fall’s Senate races. The confirmation fight also saw the continuing repudiation of the Left’s living Constitution philosophy and the solidification of a profound change in the politics of judicial confirmations wrought by the prominence of gun rights for the second time in two summers.
Second Amendment rights played a pivotal role last summer in Sonia Sotomayor’s confirmation battle, thanks to the grassroots mobilization of gun owners and the official opposition of gun groups including the NRA. However, many dismissed the pivotal role as a one-time anomaly. Instead, gun rights played an equally influential role this summer in rallying opposition to Kagan. The biggest player, the NRA, hesitated at first but then surpassed its anti-Sotomayor efforts. In addition to scoring the confirmation vote, the NRA aired TV ads warning that Kagan would erase the Second Amendment from the Constitution and appealed to its members in 25 key states urging them to ask senators “to oppose and filibuster Kagan’s confirmation.”
The prominence of the Second Amendment in consecutive Supreme Court battles makes it clear that the issue is here to stay in the judicial confirmation process. That fact forever changes the political dynamics of the judicial confirmation process, shifting the center of gravity by adding a large constituency with a long track record of effectiveness – including influence over moderate Democrats – to the coalition opposing the nomination of liberal judicial activists.
Last summer, the 31 votes against Justice Sotomayor’s confirmation surprised liberals and conservatives alike in light of more modest expectations and the memory of a mere three votes against the elevation of Ruth Bader Ginsburg to the Supreme Court. Opponents of judicial activism were able to build and even improve on that effort this summer, despite President Obama’s attempt to thwart opposition by nominating a stealth candidate.
Conservative groups and Senate Republicans – particularly GOP Leader Mitch McConnell and Judiciary Ranking Member Jeff Sessions – worked hard to get out the disturbing truth about Elena Kagan. As a result, the number of senators voting against confirmation reached nearly 40, including the first Democratic senator to vote against an Obama High Court nominee. That’s the most votes against a Democratic Supreme Court nominee in more than a century.
The level of opposition was particularly impressive given the substantial obstacle posed by the delayed release of Clinton Library documents – Kagan’s only substantial paper trail – until shortly before her hearings began. By then, the mainstream media had already settled on a ‘nothing to see here’ storyline. If the White House deserves any points for political strategy, it’s for realizing that the value of selecting a stealth nominee accrues at the time of nomination, given the muted influence of any information about the nominee that comes out after the storyline is written.