John McCain declared his opposition to confirming Elena Kagan to the Supreme Court this morning in an essay for USA Today that will allow veteran observers to update their whip counts — and not much else. The Senator who currently faces a primary challenge from his right in Arizona makes a good case for conservative opposition. However, it misses a couple of words that would actually make this newsworthy:
In 1987, I had my first opportunity to provide “advice and consent” on a Supreme Court nominee. At that time, I stated that the qualifications essential for evaluating a nominee for the bench included “integrity, character, legal competence and ability, experience, and philosophy and judicial temperament.” On that test, Elena Kaganfails.
When Kagan was dean of Harvard Law School, she unmistakably discouraged Harvard students from considering a career in the military — even while claiming to do otherwise — by denying military recruiters the same access to Harvard students that was granted to white-shoe law firms. Kagan did so because she believed the military’s “don’t ask, don’t tell” policy to be “a profound wrong — a moral injustice of the first order.”
While Kagan is entitled to her opinion, she was not entitled to ignore the law that requires universities to allow military recruiters on campus under terms of equal access with all other recruiters. The chief of recruiting for the Air Force’s Judge Advocate General Corps described the impact of Kagan’s changes by saying that “Harvard is playing games.” The Army’s report from that same period was even more blunt, stating, “The Army was stonewalled at Harvard.” …
I have previously stated that I do not believe judges should stray beyond their constitutional role and act as if they have greater insight than representatives who are elected by the people. Given the choice to uphold a law that was unpopular with her peers and students or interpret the law to achieve her own political objectives, she chose the latter. I cannot support her nomination to the Supreme Court where, based on her prior actions, it appears unlikely that she would exercise judicial restraint.
As well-constructed as this argument goes, it’s essentially moot. Barring an extraordinary effort by Republicans, Barack Obama doesn’t need McCain to get on board to confirm Kagan’s appointment to the court. The two words missing from McCain’s essay are “filibuster” and “block.” Without those two words, McCain’s essay is an academic exercise — and perhaps just a wee bit of grandstanding.
I don’t believe in judicial filibusters except in circumstances of incompetence or corruption. Barring those conditions, Presidents have the privilege of appointing jurists to the federal courts as a consequence of their election. Of course, it’s also worth mentioning that Barack Obama is the only President ever to cast a vote to filibuster a Supreme Court nomination, that of Samuel Alito, so Republicans actually have a fairly solid precedent on which to try one with Kagan, who is demonstrably less qualified than Alito, both in judicial experience and depth of publication.
That would still not make it right, and principled opposition is probably the best option, but let’s not kid ourselves that a Republican voting against Kagan will be particularly newsworthy. This will pass on a party-line vote or very close to it, and the real news will be (a) that Republicans didn’t try for the block like Democrats did with Alito, and (b) those few Republicans who vote to confirm Kagan, if any.