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Filibuster Filigree

Crafting a fine approach to the Kagan nomination.

By 7.1.10

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The Senate Judiciary Committee hearings have highlighted so many concerns about Solicitor General Elena Kagan's record that senators should not vote to confirm her to the Supreme Court before giving their constituents a thorough opportunity to weigh in. It would be entirely consistent with past Republican positions, and not just defensible but highly advisable, for Republicans and moderate Democrats to announce a specifically time-limited filibuster of Ms. Kagan until after the August recess.

Republicans have never objected to a traditional, temporary filibuster of judicial nominees (or of anything else) used merely to buy more time for investigation and public discussion. What Republicans objected to, during the Bush administration, was the unprecedented (and, some would argue, unconstitutional) use of the filibuster to permanently kill a judicial nomination. The former approach is perfectly consistent with the duties of a deliberative legislative body, in a constitutional republic, charged with advising the executive branch about candidates for the third, co-equal branch of government. The latter approach, the filibuster used as a kill shot, is wholly alien to the spirit and structure of the Constitution.

What the would-be deliberators should do is this: Announce, right up front, that they will allow a vote in September, after at least three nights of prime-time debate that follow the August recess. They should say, though, that they will absolutely positively not allow a vote before then. The reasons for this approach are manifold.

First, Ms. Kagan's thin record as a litigator and nonexistent judicial record makes it crucial to fully examine her lengthy record of political activism. The Judiciary Committee began her hearings this week after providing only weeks to review literally tens upon tens of thousands of pages of Kagan-related documents. Many of those pages have thus received only cursory review, if any review at all. The ones that have been reviewed, meanwhile, have already raised so many serious issues that they prove the value of fully examining all of them. Concurrently, another raft of documents has been entirely withheld due to unspecified "privacy" concerns. Senators under lock and key should have the opportunity to see -- not for public consumption -- whether those privacy concerns are legitimate. Not until senators have had time to fully examine the record should such an important nomination be voted on.

Second, Ms. Kagan's youth -- at age 50, she could serve for 30 or 35 years on the court if confirmed -- makes this nomination one that the public should have ample time to consider. Last year's town hall meetings on the health care bill proved that the public will step up, get involved, and air their thoughts in a productive way, if only they are given the chance. Town meetings are participatory, representative democracy at its finest. Senators should not vote on Kagan's nomination until they can meet with their constituents, away from the Capitol Hill arm-twisting and insular echo chamber, and hear what those constituents think about this nominee. If, after all of that, senators still want to confirm her, her opponents should not stand in her way. After demanding a full, fair hearing, they should in turn allow a full, fair vote. But the latter should depend upon the former, the public hearing and response before the full and oh-so-final vote.

Already, plenty of good sources exist that provide comprehensive windows into what is already known about Kagan's record. Ed Whelan at Bench Memos, Scotus Report, the Judicial Crisis Network, Shannen Coffin, and the Washington Times have removed a large portion of Kagan's veil. What emerges is a picture of a crusader for partial birth abortion; for special legal privileges for homosexuals; for government limiting free speech rights by banning pamphlets, "redistributing expression" and "dol[ing] out" speech to "unskew" debate the government deems skewed; for limiting gun rights; for a massively government-centric philosophy; and for federal power so vast that the feds theoretically would have the power to force you to eat your veggies. And we know that she has expressed left-wing beliefs both on policy and on the (highly left-activist) role of judges, while putting transnationalism and foreign law above constitutional law.

All of this knowledge is, frankly, scary. Only ample time can give the senators, and the public, the opportunity to decide if, in total context, all of this evidence should disqualify Kagan from the high court. An up-or-down vote in September -- but not before then -- would allow both enough time to examine the record, and enough time after the vote for Kagan, if she is confirmed, to be seated on the high court in time for the new term that begins on the traditional "First Monday" in October.

Republicans showed in 2002 and 2004 that when judges become campaign issues, Republicans win. Despite GOP hand-wringing, evidence to the contrary is utterly nonexistent. Polls show that the public supports originalist approaches to judging rather than the "evolving Constitution" model. Polls show that the public, by outright majorities or solid pluralities, also approves of the usual policy results that happen to emerge from originalist procedures: against partial birth abortion, against government seizure of private property for other private use, against judicially imposed homosexual marriage, against handgun bans, against outright bans on all religious references in the public square, against race-based admissions and job promotions, against an ever-expansive federal government at the expense of the states, against bureaucratic overreach, and especially against coddling of criminals because of purely innocent procedural errors by police. These are issues Americans care about, and they are issues conservatives will always win on.

A time-limited filibuster will allow those issues to come to the fore, and smoke out Democrats who want to claim to be moderate. In doing so, it will pay heed to the American people's desires, by giving them, in the most direct way constitutionally possible, a chance to shape the interpretation of this nation's foundational document.

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.