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.
Most importantly, the nearly 40 votes against Kagan sends a strong message to the White House that even if Republicans pick up just a few seats in November, a nominee like Kagan can be defeated in the next Congress. That means that Obama will likely be forced to nominate a genuine moderate for the next Supreme Court vacancy – someone like D.C. Circuit Judge Merrick Garland.
Of course, a big Democratic comeback in November could change all that. But the Kagan confirmation fight makes such a comeback less likely. On the hot-button issues of the day – gun rights, gay rights, partial birth abortion, ObamaCare and the like – polls show that Kagan is on the wrong side of the American people by large margins. That presents a valuable electoral opportunity for the GOP and a problem for red or purple state Democrats who voted for Kagan.
Those Democrats will have to explain to their constituents why they essentially voted for same-sex marriage, strict gun control, open borders, limitless abortion, racial preferences, and the like in confirming Kagan. Although it’s no surprise – given Kagan’s likely agenda on the Court – that public support for Kagan was consistently at a historical low for a Supreme Court nominee headed for confirmation, that unpopularity further complicates the explaining that Democratic senators will have to do back home.
The senators who opposed Kagan should be proud not only of their votes today, but also of the tough but courteous questions they asked her during her hearings and of the often powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved including a serious debate about constitutional interpretation and the proper role of judges. A good example was the exchange between Kagan and Sen. Coburn about original intent versus modern precedent, during which Kagan tellingly resisted the conclusion that a hypothetical federal law requiring Americans “to eat three vegetables and three fruits every day” would exceed Congress’s authority under the Commerce Clause.
There could have been an even better debate if Kagan and her White House handlers had not chosen to run away from the judicial philosophy of empathy and tipping the scales in favor of “the little guy” espoused by the President, Senate Democrats, and an earlier version of Elena Kagan. Instead, for the second summer in a row, a Supreme Court nominee used her hearings to explicitly and completely disavow President Obama’s call for judges who rule from the heart in difficult cases:
Sen. Kyl: Do you agree with [President Obama] that law only takes you the first 25 miles of the marathon [in hard cases] and that the last mile has to be decided by what’s in the judge’s heart.
Kagan: Senator Kyl, I think it’s law all the way down.
On a closely related point, both Kagan and Sotomayor not only refused to stand and fight for the Left’s cherished theory of a living Constitution, but actively disavowed such an approach to judging during their hearings. That leaves little doubt that, while liberal judicial activism will live on surreptitiously in the courts, the living Constitution is now dead as a defensible judicial philosophy outside academe. That is perhaps the most important conservative victory in this summer’s confirmation process.
Curt Levey is Executive Director of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.